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Full text of "reports of cases in law and equity"

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U.S.A. 
Ga.lOO 
30 



' 



EEPORTS .'^^1 



• « 



• OP 







CASES IN LAW AND EQUITY, 

I 

ABGUED AND DETERMINED 

IN TBI 



uptime ®0iitt 0f tie ^tafo ti deotjiE, 



OOHTUinVO TBK DBCI8I0V8 AT 

^ 

m 

MACON, JANUARY TERM, 1861. 
ATLANTA, MARCH TERM, 1861. 
MILLEDGEVILLE, MAY TERM, 1861. 
ATHENS, MAY TERM, 1861. 
SAVANNAH, JUNE TERM, 1861. . 
MACON, PART or JUNE TERM, 1861. 



LavT Schr 

; TOIUME miL „. .,.„ „ 

I O-EORGE N. LESTER, Reporter. 



I 



r 

■ 



MACON, GA.: 

J. W. BURKE & CO. 

1869. 




\^^ -i«*/;/viy6J 



H\ 




Entered according to Act of Gongressi in the year 1869, bj * 

J.'W. BURKE & CO., 

In the Clerk's Office Of the District Coart of the United States for the 

Sonthern District of Georgia. 



REi^ORTER'S N^OTE. 



It ia dae, both to tlie pablic and the Reporter, that the canses which 
have conspired to delay the publication of this yolame should be made 
known. Several hundred pages of the Tolume were printed, in the lat- 
ter pari of 1861. Early in 1862, the Reporter entered the military 
serrice of the Confederate States, and continued therein until he was 
disabled. The absence of lawyers, parties, witnesses, and jurors in the 
army, led to an almost total suspension of the Courts, and there being 
little or no demand for the book, its publication was discontinued. Dur- 
ing the war, ^he house of the Reporter was burned, and his books and 
papers, including many of the cases in original manuscript, were de- 
stroyed. The printed part of the volume was destroyed with the Print- 
ing House in the city of Atlanta. The close of the war, found the Re- 
porter, like tliousands of his fellow-countrymen, poor and destitute, and 
be deems it ne humiliation to say, that he was not pecuniarily able to 
incur the ezi>ense of leaving home, and remaining at Milledgeville long 
enough to copy the opinions, and restatOi from the records and bills of 
exception, the burned cases, and then advance the price of publication, 
taking the chances of remuneration from the sale of the book, for which 
there was still but little demand. Sixty-five cases in this volume were 
destroyed, and had to begotten up anew, and but for the statute of 1868, 
and the liberality of John W. Burke, Esqr., the publicaUon of the book| 
even at this time, would have involved pecuniary loss to the Reporter. 



JUDGES OF THE SUPREME COURT. 



Hon. JOSEPH HENRY LUMPKIN, Athens, 
Hon. RICHARD F. LYON, Albany, 
Hon. CHARLES J. JENKINS, Augusta. 



JUDGES OF THE SUPERIOR COURTS, 



WH06£ DfiCISIONS AEE BHVIEWBD IN THESE HEPOBTS. 



Blue Ridge CircQit, Hon. George D. RicB; Marietta. 

Brunswick Circuit, Hon. A. E. Cochrak, Branswick. 

Chattahoochee Circuit, Hon. E. H. Worrill, Talbotton. 

Cherokee Circuit, Hon. D. A. Walker, Dalton. 

Coweta Circuit, Hon. 0. A. Bull, LaOrange. 

Eastern Circuit, Hon. Wm. B. Flemixo, Savannah. 

Fliiit Circuit, '. Hon. E. G. Cabiness, Forsyth. 

Macon Circuity Hon. Hbnrt G. Lamar, Macon. 

Middle Circuit, Hon. W. W. Holt, Augusta. 

Northern Circuit, Hon. Thomas W.Thomas, Elberton. 

Ocmulgee Circuit, Hon. Itbrson L. Harris,... Milledgeville. 

Pataula Circuit, ..Hon. W. H. Perkins, ...Cuthbert. 

Southern Circuit, Hon. A. H. Haksbll, Thomasville. 

South- Western Circuit, Hon. A. A. Allen...... Bainbridge. 

Tallapoosa Circuit, Hon. D. F. Hammond, Newnan. 

Western Circuiti Hon. N. L. Hutchins...... Lawrenceville. 



aEPOBTSD IN THIS VOLTTUE^ ALPHABETICALLY ABBAKGED. 



A 

AdkinsM. Paal,..^ 210 

Aiasworth. Brewer admW, ot.~ 487 

Albert Of. Howell, - 648 

Allen vs. Holden, 418 

Armisteadm. Armutead, 597 

A. & W. Pi. R, B. Co. V9. 
Speer, 650 

B 

Bai]ey vs. New. admWj 646 

Ball, exV, vs. Wallace^ et. uz.j 170 

Battle vs. Stephens, 26 

Beall vs. Leverett, admW,, 106 

BellM. McQrady, 267 

Bentley, Faganot., 6N 

Benton «t. Benson,... 864 

Black, Binton ei. al. vs 68 

Black vs. McBain...^ » 128 

Black k Cobb, Jonnaon vs...... 896 

Blalock et. aJ., Ramsey os....... 876 

Boathgbt t». Heirs of Porter,.. 130 

Boodoj. Whitfield, 216 

Borders, Joiner eL al. vs., 239 

Boyd vs. White, ei. al., 630 

Braatoncf. Bash, 669 

Brewer, admW., vs. Ainsworth, 487 

Brown, Qoyernor, eto. , Hamp- - 

ton et. al. vs., 261 

Bryant, Lowetu., 236 

Barns vs. HarTell,. 602 

Barton eL al. vs.. Black, 68 

Bash, Branton vs., 669 

Bottram m. Jaekaon, 409 

C 

Calahan, Wooten ft Ooolsby vs 882 

Cantrell, Kisbett M., 294 

Carmidiael, Liuleot.,...w 406 

Carr et. aL.vs. Trustees of 

£mory College,... 667 

Casaada, Comptoi^os.,..* 428 

Chaffee, St. Amand ft Croft vs. 

^^ Rentfroe ft Bra, 477 

Chamberlain vs. Sheftall, 667 

CleUndet. Lowei ^.••». 468 



Cleland, Waters vf^^*.... — 688 

Clopton, York vs., .* 862 

Coats ft Boo, Doe, Hesters et. 

al. vs.j. 448 

Cochran, Hobgood ttf., .• 689 

Collier, Wimberly vs., t 18 

Compton vs. Cassada,... «.•—••• 428 
Cone et. of., The State os.,~... 668 

Conly, Mayor, etc., vs., 211 

Connell vs. Sharpe, « •..,..•• 448 

C. ft C. R. B. Co., Wood vs.,.. 274 

Cox vs. The State, •*•••••• •• 616 

Crow et. al., Hudginstis., • 867 

Crown vs. Leonacd ft Goodale, 241 
Calberson, Sprayberry vs.,.*.*- 299 
Carry, Webster ft Mann vs,,... 297 

D . ' 

4 

Dallas vs. Heard et (d., 604 

Daniel ft Daniel vs. Veal, 689 

Davis vs. Stripling, ...••• 666 

Dean vs. Manroe, 28 

Dean, Vaughan etdm'r. V4...»»* 602 
Doe ft Bohanan vs. Roe ft Baun, 890 

Doe ft Hesters vs. Coats, 448 

Doe, ex dem., Irwin, Roe ft 

McDowell, vs, 89 

Doe ft McGee vs. Guthrie ft 

Powell, 807 

Doe ft Mon^pn vs. Stanford, 626 

Doe ft Virgin vs. Roe & Land, 672 

Duke, ez'r, vs. Horton, 637 

Durham vs. Hartlett, 22 

Durham vs. Mayo, 192 



F 



Fagan vs. Bentley,- 684 

Ferguson vs« The States 668 

Field, Ratston, vs., 468 

Foster ft Philpot, Hicks et al., 

vs ^ 414 

Frith vs. Siler, ^. 666 



Ghirdner vs. Weeks, 696 

QiUvs. Stroaier, k .• 688 



VI 



TABLE OF CA8EB. 



Oilliam m. Tbe State, Ill 

Gilmer vs, Oilmeri > 686 

Qriffin, Smith v«., 81 

Griggs, Walker^ ex'r, vs. 119 

Griswold, Taylor v$ 669 

Green, Hackett vs 612 

Greea^ Wyohe, e<ux.9t7«.... 841 

Guthne i Powell, Dioe k Mc- 
Gee M 807 

H 

Hackett M. Green, 612 

Hampton 09. Brown, Got., etc. 251 

Harkins ft Arthur, ScoU vs 802 

Harper ft Nelson, Silcox M-... 689 

HarrelU adm^r, ««. Park, 666 

Harris, Robertii ft Hughey ttf... 642 

Harris vs. MuUins * 704 

Harrison, Wilcozon tt al,, M... 480 

Hartell, trustee, vs. Searcy, 190 

Hartell, Durham «s 22 

Harrell, Bums v$ 602 

Harney ft Scott, Robs m 888 

Hays, adm^r, m. McFarlan, 699 

Head, Kennedy ft Cooksey os. 629 

Heard sfol., Dallas vs 604 

Hendriz vs. Kellogg,.... 486 

Hickey, Patterson e? a/. , vs 1 66 

Hicks et ol., vs. Foster and 

Philpot, 414 

Hobffood vs. Cochran, 689 

Holden, Allen vs 418 

Hicks, Loyd vs 499 

Home vs. Planters Bank 1 

Horton, Duke, ez'r, vs; 687 

Horton, Janes vs •« 246 

Howard et al,, vs. Snelling 196 

Howell vs. Albert 648 

Howell ft Co., Shands ft Co. 

vs 488 

Huff et oL, vs. McRary ft Huff, 681 

Httdffins, Crow e< a2., vs 867 

Hugly et al,, SuUiyan vs 816 

I 

Irbyvs. TheSUte 496 

J 

Jackson ft Moye vs. Jackson, ... 826 

Jackson, Buttram vs ~ 409 

Janes vs. Horton eial,, 246 

Johnson vs. Black ft Cobb...... 896 

Joiner et ol., vs. Borders, 289 

Jones e<a2., vs. Manroe, 181 

K 

KeatoD M. Bead, 498 



Keeter vs. Smith, 44IS 

Kellogff, Hendriz vs 43€ 

Kelly ft Sallee, McLendon vs. 464 

Kennedy ft Cooksey vs. Head, 629 

Kennelly, Sheehan ss 146 

Kersey et a2.. Roe ft Green vs. 1«5!2 

Killet vs. The Stete 292 

L 

Lee, Rhodes vs 470 

Leonard ft Goodale, Crown vs. 241 

Leyerett, adm'r, Beall vs 105 

Lewis, sup't, vs. McAfee, 465 

Lewis, supU, Whidby vs 472 

Little vs. Carmichael, 406 

Little vs. Owen, 20 

Lively, Lynch vs 675 

Logan ft Meara, Williams vs... 165 

Lowe vs. Bryant, 285 

Lowe, Cleland vs - 4o8 

Loyd vs. Hicks, 499 

Lucas' heirs vs. Tarvcr, 262 

Lynch vs. Lively and another, 675 

M 

Maddoz and wife, McDougald 

s<a2., vs. 63 

Maddoz vs. The Sute 681 

Mahone, Pare vs 268 

Mansfield ft Ives vs. Turpin and 

another, 260 

Mansfield, Roberts and another 

vs 228 

Mann vs. M. and W. R. R. Co., 845 

Mapp vs. Phillips, ~ 72 

Mattnews, Williamson vs 624 

Matthis ft Shelton, McGregor 

vs 417 

Mayo» Durham vs 192 

Mayor of Cuthbert vs. Conly... 211 

McAfee, Lewis, sup't, vs.. 465 

McBain, Black vs 128 

McClung ft Co, Wilkes vs 607 

McDougald e^ ul., vs. Maddoz. 

et ux,, 68 

McFarlan, Hays et al., vs. 699 

McGrady, Bell vs 267 

McGregor and another vs. Mat- 
this, 417 

McLendon vs. Kelly ft Sallee, 464 

McLendon vs. Shackelford 474 

McRarey ft Hnffvs. Huff si oi. 681 

McRorey, Bykes vs. ;........ 848 

Mitchell, ez^r. Word vs. 628 

Moncas, Stocks and another vs. 880 
Monday (a slave) vs. The State, 672 
Montgomery and another vs. 

Morris i 178 

MttlUnt, Harris vs..« 704 



TABLE OF CA8IS. 



vir 



tfanroci Doad m 28 

Kunrooi Jones ei oL, w 181 

N 

{^ew, adni'r, BaileT 9t.« 646 

NUbett tw. Cantrell 294 



Ordinary of Webster coantj, 

Skelton et oZ., tw 266 

Owen, Little va 20 

P 

Parish o«. Parish, ^ 668 

Pare r«. Mahooe, 268 

Park, Harrell, adm'r, os 666 

Pamell & Jennings, Phillips rt . 622 
Patterson e^ aZ., rt. Hickej,... 166 

Paul, Adkins vs 219 

Phillips, Mapp vs 72 

Phillips vs, Pamell & Jennings, 622 

Planter's Bank, Hornets 1 

Porter's heirs, Boatright of...- 180 

Posey, ToIIeson vs 872 

Price, Redding vtf 178 

Price, WilletM 116 

B 

Ralston w. Field, 468 

Ramsey f». Blalock ei, aL, 876 

Read et aL, Keaton vt ~ 493 

Redding OS. Price, - 178 

Henfroe ft Bro., Chaffee, St. 

Amand ft Croft V9 - 477 

Rhodes «ff. Lee, • 470 

Riley, 6mith vs 366 

Roberts and another m. Mans- 
field, ~ 228 

Roberts ft Hughes vs. Harris, « 642 

Roberts e«. Thomas, - 81 

Robertson es. The State, ~ 424 

Roeft Bann, Doe ft Bohananos 890 
Roe ft Qreen m. Kersey ei. oL 162 
Roe ft Land, Doe ft Vinnn es- 672 
Roe ft McDowell es. Doe ft 

Irwin, ,... 89 

Roe ft Stanford «s. Doe ft 

Mongin, 626 

Rome B. B. Co. m. Snllivan, 

Cabot ft Co., 400 

Ross Of. Hanrey ft Soott,^ 888 

S 

Scott ffff. Harkinsft Arthur,.... 802 

Searcy, Hartell, trustee et 190 

Shackleford, McLandoatit 474 



Shands ft Co. «f . Howell ft Co. 488 

Sharpe, Connell 9$ •« 448 

Sheenan et. Kennelly, 145 

Sheftall, Chamberlain vt 667 

Silcoz et, tic., et. Harper ft 

Nelson, « 689 

Slier, Frith et 665 

SkeltoB et. al,, et. Ordinary,... 260 

Smith ot. Griffin, 81 

Smith vs. Riley, ~ 866 

Snelling, Howard et. al. et...... 196 

Speer. A. ft W. Pt. R. R. Co. et 660 

Sprayberry vs. Culberson 299 

Spnllock, Wallace ft Wallace et 488 

Stephens, Battle et 26 

Stockdaleet. The State, 225 

Stocks ft another vs. Moncas,.. 880 

Stripling, Davis et 667 

Strozier, Gill et ~ 688 

Salliyan, Cabot ft Co., Rome 

R. R. Co. vs 400 

Sullivan vs. Hugly et. al 816 

Sykes vs. McRorey et. al 848 

T 

Tarrer, Heirs of Lucas et...«».. 26fi 

Taylor vt. Griswold, 669 

The State et. Cone et.al 668 

The State, Coxet 616 

The State, Ferguson vs 668 

The State, Gilliam ot.. Ill 

The State, Irby vs 496 

The State, Killet vs 292 

TheSute, Maddozot 681 

The State, Monday (a slave) vs 672 

The State, Robertson vs 424 

The State, Stockdaleot 225 

The StateL^ Woody vs ~ 695 

Thomas, Roberts ot 81 

Tolleson vs. Posey, 872 

Trustees of Emory College, 

Can et. al.vs 667 

Turpin ft Clements, Mansfield 

ftlveset 260 

V 

Vanghan, adm^r. vs. Dean, 602 

Veal, Daniel ft Daniel et ...689 

W 

Walker, exV et. Griggs,.. 119 

Walker et. Watson, 264 

Wallace ft Wallace et. Spnllock..488 
Wallace ft wife. Ball, exW vs.. ..110 

Waters et. Cleland,.. 688 

Watson, Walker et 264 

Webster ft Mann vs. Curry, 297 

Weeks, Gardner et. ~696 

Whidby et. Lewis, titp'i, etc 472 



▼in 



TABLE OF OABEB. 



Whitehead, e^oZ., fibyd v», 580 

Whitfield, Bond m. 216 

Willcozon, et oZ., f». Harrison,.. 480 

Wilkes V9. McClungft Co 607 

Willet M. Price, 116 

Williams v«. Logan & Meara 165 

Williamson V9, Matthews.... 624 

Wimberly w. Collier, .« 18 

Wood vs. C. t C. R. R. Co.,. ....274 



Woodmff t». Woodruff.... 858 

Woody w. The State, M5 

Wood w. Mitchell, ex'r 623 

Wooten & Goolsby vs. Calahan..S82 
Wyche, etuz vs. Green, 841 



York 99, Clopton, et al> 



CA.SES 



ARGUED AND DETERMINED 



IV THK 



[Uptmt ©flurt flf i^t ^tafe ni ffimgia, 



AT MACON. 



JANUARY TERM, 1861. 



Pbibent— JOSEPH H. LtrMPKIN,^ 

RICHABD P. LYON, ^Judges. 
CHARLES J. JITNKINS, ) 



HoBNS v8. Plantebs' Baite of Geobgia. 

Whert the testimony in support of the verdict greatly outweighs that 
aguDst it, a new trial will not be granted, of course on the ground 
that the Terdict is against the weight of evidence. 

When there aresereral items of indebtedness, the debtor has the right to 
make the application of payment ; and failing to do so, the right de- 
▼oWea npon the creditor to appropriate the payments. 

Complaint in Dougherty Saperior Court. Tried before 
Jadge Allek^ at the June Term, 1860. 

Thb WBB an action brought by the Planters' Bank of Geor- 
gia, for the use of John W. Babun against Charles W. Home, 
as endorser, to recover the amount of a promissory note^ of 
which the following is a copy : 



2 SUPREME COURT OF GEORGIA. 

Honie ra. Plaoten' Bank of Georgia. 

" Laubens County, Geobgla., Nov. 25, 1851. 
*^ Sixty days after date I promise to pay to the order of 
Charles W. Home, two thousand dollars, at either of the 
banks in Savannah, for value received. 

"ANDREW Y. HAMPTON." 
Endorsed as follows : 

" C. W. HOBN." 

"Rajbun, Fulton & Co.'' 

To this action the defendant pleaded that the note was 
given to the firm of Rabun, Fulton & Co., as an aocommoda- 
tion paper, to be used by them in bank, and if Rabun, Fulton 
& Co. did not otherwise arrange for its payment, it was agreed 
between said firm and Hampton and the defendant, that if 
defendant would endorse the note, he should be secured against 
liability thereon, as follows : That Hampton's cotton crop, 
which was large, was to be sent forward to said firm, and that 
the proceeds of the sale of the cotton should be by said firm 
applied to the payment of the note; that Hampton did, 
after said note was given, and before it matured, send forward 
three or four hundred bales of cotton to said firm, with in- 
structions to apply a sufficiency of the proceeds of the same 
to the payment of the note; that the firm received and sold 
the cotton, and retained enough of the proceeds thereof to 
pay the note, and instead of so applying the money, they 
pretend that it has been applied to other debts of Hampton, 
in violation of the agreement and contract under which de- 
fendant was induced to endorse the note. The defendant also 
pleaded that Hampton and defendant were both sued on the 
said note in Baker Superior Court, and that at the May Term, 
1855, of Dougherty Superior Court, to which the case had 
been transferred, the plaintiff obtained a verdict, judgment 
and fi, fa. against said Hampton and defendant for fifteen 
hundred and thirty-five dollars, with interest and cost of 
suit. 

On trial of the case in the Court below, the plaintiff in- 
troduced, as evidence, the note sued on, and proved by William 
J. Bullock, that on the 27th day of January, 1852, as Notary 
Public, the witness noted the promissory note sued on for 



MACON, JANUARY TERM, 1861. 



Home V0, Planters' Bank of Georgia. 



non-payment, and gave the defendant, as endorser, notice of 
the same, by mailing the notice in the post office at Savannah, 
addressed to said defendant at Dublin, Laarens county, Geor- 
gia, on the said 27th of January, 1852. 
The plaintiff then rested. 

The defendants read in evidence the answers of Akdbew 
Y. Hampton, to interrogatories taken out in said case^ who 
testified : That the defendant released him from all liability 
for costs in said case ; that the note sued on was given by 
witness to the firm of Rabun <& Fulton for witness' own ben- 
efit ; that Home signed said note as endorser, on condition, 
and with the understanding, that out of the money arising 
from the sale of witness' cotton crop to be sent to Rabun & 
Fulton, the note should be paid ; witness thinks the note was 
delivered to the firm of Rabun & Fulton, with the under- 
standing that the proceeds of the cotton were to be first ap- 
plied to the payment of the note ; thiat after the note was 
made, witness sent to Rabun & Fulton his cotton crop, 
amounting to between one hundred and forty and one hun- 
dred and fifty bales, or, if he did not send that much, he sent 
at least enough to pay the note ; he thinks he sent all, as he 
does not recollect dividing his crop that year, and enough of 
the proceeds of the cotton so sent to Rabun & Fulton was to 
be applied to the payment of the note endorsed by Home ; 
that the cotton was sold, and the witness supposes must have 
netted at least $4,000 00 ; that witness did not know but 
what such application of a part of the proceeds of the cotton 
to the payment of the note was made, until after he had 
moved a second time to Baker county, and retumed with de- 
fendant to Laurens county, and then learned, to his astonish- 
ment, that the note had not been paid ; that Rabun & Fulton 
received the cotton in the year 1850 or 1851, the witness does 
not recollect which ; that there were one hundred and forty- 
eight bales, if he sent all his crop, and he thinks he did ; 
that he does not recollect what the cotton sold for, but thinks 
the n^ proceeds must have been at least $4,000 ; that he does 
not recollect whether Rabun & Fulton furnished him with an 
account of the sale of the cotton or not, but thinks he movH 



4 SUPREME COURT OF GEORGIA 

Horne m. Plantera* Bank of Georgia. 

to Baker county before he received it, if he ever did ; that 
he does not recollect anything of a settlement with Rabun & 
Fulton, but supposes he received an account of the sale of 
the cotton, and, perhaps, how the account stood between them, 
but has no recollection of it at this late date; that he does 
not recollect promising to send said firm all his crop, but 
promised a part, and may have sent all ; that he is pretty sure 
he did whatever he promised to do, which he thinks was done 
at the time the note was endorsed ; that he did not owe the firm 
anything when the note was given, but thinks it was the first 
dealing between them ; that he cannot say how much he owed 
them at the sale of the cotton, but supposes that he owed 
them for bagging, rope, sugar and coffee, etc.^ sufficient for his 
plantation for the season previous to the sale of the cotton; 
that the cotton was not under advance to any one when it 
was sent to Rabun & Fulton, nor did they pay anything to 
to any one for the witness that he now recollects. 

Here the defendant rested. 

The plaintiff, in rebuttal, read the depositions of William 
S. Bbantly, who testified : That from early in March, 1851, 
until the last of July, 1852, the witness was book-keeper for 
the firm of Rabun & Fulton, and, as such, had access to all 
the business letters of the firm, kept the letters and orders 
on file, entered all notes received by them, collected their 
cotton bills, made deposits when instructed to do so, and, in 
short, did everything and knew everything relative to their 
accounts that any book-keeper knows about the accounts he 
is keeping ; that A. Y, Hampton was a customer of said 
firm, bought groceries from them frequently, got them to ne- 
gotiate his paper with the bank, and sent them cotton to sell ; 
that witness kept the accounts between them ; that about the 
1st of December, 1851, Hampton owed the firm of Rabun & 
Fulton about $3,600 for cash purchases and sight drafts 
which had been cashed by said firm; that Hampton prom- 
ised to send cotton enough in a short time to reimburse the 
firm for the cash they had advanced for him ; that they then 
had on hand some cotton for Hampton, and waited to be put 
in funds for their advances ; that Hampton gave the note 



MAOON, JANUARY TERM, 1861. 5 

Home vs. Planters' Bank of Georgia. 

sued OD; which was endorsed by Horne, to have the same dis« 
counted at Hampton's expense, to place said firm in funds 
for the cash purchases and sight drafts aforesaid ; that the 
proceeds of the note, when discounted, together with the cot- 
ton on band, or likely to be in a few days, would about bal- 
ance Hampton's account with the firm ; that Hampton prom- 
ised to ship to the firm cotton enough, by the time the note 
fell due, to pay it off, without further advances from said 
firm ; that Hampton failed to send the cotton, and Rabun & 
Fulton advanced two thousand dollars to withdraw the note 
from the bank ; that the witness well remembers this, having 
made an entry of it in red ink on the cash book, the 27th of 
January, 1852, and the firm held the note as cash, and it was 
not eharged to him, as will be seen from the account herein- 
after set forth ; that the note was not paid whilst the witness 
was in the employment of Rabun & ^Fulton, neither did the 
witness receive any order from Hampton, or any one else, to 
apply the proceeds of any cotton exclusively to the payment 
of said note, any more than to any other advance or debt due 
the firm ; the account hereinafter given shows the proceeds of 
all the cotton ever received by the firm from A, T. Hamp- 
ton, who was fully informed as to how the proceeds of the 
cotton were applied ; that witness knows of no objection from 
Hampton as to the money his cotton brought ; that if any 
orders had been given to the firm relative to said note, and 
its payment out of any particular cotton, the witness must 
have known it, as the firm fully informed him, as their book- 
keeper, concerning their accounts ; the witness' attention was 
frequently called to the note, and he well remembers that said 
firm had no cotton funds on hand to meet this note, for weeks 
before it fell due, except a small amount of less than one 
hundred dollars ; the note sued on is not embraced in the 
account, but was held as cash ; the witness cannot say how 
much cotton was received by Rabun & Fulton aft;er the date 
of the note; the credits on the account current shows fifty- 
six bales, but some twenfy-five bales of this, the witness 
knows, was received and sold before the note was made, but 
not credited until after the note was made, and the cotton on 



6 SUPREME COURT OP GEORGIA. 

Home va. Planters* Bank of Georgia. 

hand, with that which Hampton promised to deliver in a 
few days, and that that had been sold^ was about enough to 
balance his account^ counting the note as cash ; that the wit- 
ness knows Hampton gave no special order about the pay- 
ment of this note out of any particular cotton, because if such 
order had been given, he must^ from his connection with the 
firm, have been informed of it ; the following is a copy of 
the account current, to- wit: 

Dr. j1. Y. Hampton in <iccount with Babun it FuIUm: 

1851. 

Febraary 25. To cash paid son, $2,886 49 

March 15. To sandries, as per bill rendered, 174 44 

*< 18. To cash paid draft, 40 00 

April 12. To sundries as per bill rendered, 148 07 

June 5. To cash paid note, 2,500 00 

" 14. To sundries, as per bill rendered, 166 02—2,667 02 

$5,412 02 

CONTRA. CR. 

February 20. By proceeds of note discounted.......... 2,885 49 

May 28. " " ** '* " 2,495 91—4,88140 

July 1. Transfer of amount of balance to new 

account, 580 62 

$5,412 02 

Ih\ A. Y. Hampton in account with Rabun & FuUtm^ 

1851. 

July 1. To balance due transferred to new ac- 
count, $580 62 

'' 15. To sundries, as per bill rendered, 10 54 

'' 28. To acceptance from N. Boventball,.... 293 88 , 

« << To commission on same, 2\ per cent,.. 5 87 — 809 79 

Sept. 6. To sundries, as per bill rendered, 188 92 

" 25. To " " *• " " ^ 21 27— 155 19 

<< 27. To cash paid draft to Washburne Netts, 100 00 

<* << To commission on same, 2}, 2 50— 102 60 

October 6. To sundries as per bill rendered, 188 22 

'' 18. To acceptance in favor of Lipman...... 81 40 

" 21. To sundries, «s per bill rendered, 121 85 

'' 24. To acceptance in favor of S. Roven- 

thall, 226 25 

'^ 24. To commission on same, 2}, 5 66 568 89 



I 



t 



MACON, JANUARY TERM, 1861. 7 

Horne vs. Planters* Bank of Georgia. 

Ko7. 8. To cash paid draft to S. A. Duval, 2S6 77 

11. To " " " " P. k Co., 200 81 

12. To '' son, net proceeds of draft, 2,851 89 

" To commissions for negotiating same, 60 00 

26. Toeasbpaid hk note,- 2,587 60 

28. To acceptance 80 day draft, — 800 00 

" To cash paid 80 dajs interest on same, 4 66 

" To commission for acceptance, 20 12—6,810 75 

.Dec 27. To sundries, as per bill rendered,. ..~... 19 77 

18S2. 
Jannaiy ^7. To oommissions for adraneing $2,000 

for note this day protested, 60 00 67 76 

$8,184 71 

CONTEA. 
1851. 

^OT. 12. By proceeds of draft discounted. ..2,411 89 

" 22. By seventy-six bales cotton, 2,066 28—4,477 67 

Dee. 8. By proceed of yoar note discounted 

this day, 1,978 62 

1852. 

January 9. By fifty-six bales cotton, 1,654 90 

Joly 22. :^ one ** •' 28 62—1,678 48 

$8,184 72 

Here the plaintiff again rested^ and the defendant, intro- 
daoed Pffeb J. Stbozieb, Esq., who testified : That in a for- 
mer suit on the note sued on in the present action, a verdict 
was taken for $1,500, the witness having been informed 
by Baban & Fulton diat there was a balance to be credited 
on the note, and Hampton stating to witness that it was 
tSOO, or in that neighborhood, and • when he obtained the 
verdict, Hampton said it was right, or all right. 

The testimony closed, and after the presiding Judge had 
<:harged the jury, amongst other things, as stated in the mo- 
tion for a new trial, the jury returned a verdict for the plain- 
tiff for $1,912 29, and interest from the 25th January, 1852, 
with costs of suit 

Counsel for defendant then made a motion for a new trial 
on the following grounds, to-wit: 

Ist. Because the verdict of the jury is contrary to evidence 
and without evidence. 



8 SUPREME COURT OF GEORGIA. 

Home «f . Planten' Bank of Georgia. 

2d. Beoaose the jary found contrarj to, and in perfect 
disr^ard of, the following charge of the Court : '* That if 
the evidence showed that it was a condition of Home's en- 
dorsing the note, that Rabun & Fulton should applj the first 
proceeds of Hampton's crop of that jear to the payment of 
this note, and Rabun & Fulton were notified of the contract, 
and that anj cotton had been sent to Rabun & Fulton after 
the making of the note, by Hampton, or was on hand at the 
time of the making of the note, belonging to Hampton, out 
of the then crop, the proceeds should have been applied to 
the payment of the note in suit ; if enough to pay the .whole 
note. Home was discharged ; if not the whole to the amount 
the cotton brought, what that might be." And defc^ndant 
alleges that the evidence showed at least fifty-seven bales 
were received and on hand at the time of making the note. 

3d. Because the Court charged the jury, '^ That it was 
incumbent on the plaintiff to prove demand of payment and 
notice of protest, aftier maturity of the note, in order to 
charge the defendant ;" and the defendant alleges that there 
was no evidence that this identical note had ever been pro- 
tested, or that the defendant had ever been notified of the 
protest. 

4th. Because plaintiff's counsel, in conclusion, mis-stated 
the testimony to the jury, in representing '' that Hampton, 
in his depositions, had stated that at the time of making 
said note, he did not owe the firm of Rabun & Fulton any- 
thing, and that the witness, Brantly, stated he owed them 
$3,600 at that time," which, by reference to Brantly's depo- 
sitions, will more fully appear. The fact being that Rabun 
& Fulton^were in debt to Hampton a balance of $87 29 wheu 
the note was made. 

6th. because the verdict of the jut/ is contrary to law. 

The presiding Judge refused the new trial, and that decis- 
ion is the error alleged in the record in this case. 

MoBQAK for plaintiff in error. 

Vason and Stboziek for defendant in error. 



MAOON, JANUARY TERM, 1861. 9 

Home w. Plaatera* Bank of Georgia. 

By the Churl. — ^Lumpkin, J., delivering the opinion. 

Ib the verdict in this case so strongly and decidedly against 
the weight of evidence as to constrain this Court to grant a 
new trial, notwithstanding an application for this purpose 
was refused by the Circuit Judge who heard the cause ? This 
is the only question argued before this Court. 

It is immaterial whether it was the understanding or not, 
between Home and Hampton, at the time the note sued on 
was endorsed, that the proceeds of Hampton's cotton crop 
fiffwarded to Rabun & Fulton, to whom the note was given, 
should be applied to its payment, unless notice was commu- 
nicated to Kabun & Fulton, they cannot be affected by the 
agreement ; and, on the other hand, if Hampton directed 
them so to appropriate the cotton, they were bound by ^his 
instructions. 

The trouble is, there is not only the want of satisfiustory 
and sufficient proof that Hampton gave such directions, but 
there is the positive testimony of Brantly, the book-keeper 
of Babon & Fulton, and who transacted this whole business, 
that so sach directions ever w^e given. And there are strong 
corroborating circumstances, as well as this direct evidence^ 
against the defence. 

I copy, verbatim^ the testimony of Andrew Y. Hampton, 
the only witness sworn in support of the defence. He says : 
''The note^ the foundation of this suit, was given to Babun 
& Fulton, and given by witness, and given for the purpose 
of witness' own benefit. Home was only bound as endorser, 
Mid B^ned it as such. Defendant signed it upon condition 
and understanding that out of the proceeds of witness' cotton, 
that should be sent to Babun & Fulton, the note should be 
paid ) witness ihinka the defendant delivered the note to payee 
upon the understanding and agreement that Babun & Fulton 
was to apppropriate the proceeds of the first of witness' crop 
to the payment of the note." 

Correct the manifest and manifold mistakes in the deposi- 
tions of witness, as taken down, and assume what is likely 
tme, that Mr. Hampton meant to swear that he thinks he 



10 SUPREME COURT OF GEORGIA. 

Horne vs. Plantera' Bank of Georgia. 

delivered the note to Rabun & Fulton with the understand- 
ing that the first of his cotton crop was to be appropriated to 
the payment of this note. Testimony thus doubtingly given, 
if uncontradicted^ would be too weak to control the finding 
of the jury in a case like this. Indeed^ while we would not 
impute to Mr. Hampton a want of veracity, as it respects this 
transaction, yet it is apparent that his testimony is too vague 
to be reliable. He does not recollect how much cotton he made 
in 1851 ; does not recollect whether he sent the whole or a 
part only to Rabun & Fulton; does' not recollect whether 
- they rendered him an account of sale, etc. ; he does not re- 
collect whether he said to plaintifis that all was right ; he 
might or he might not. He is pretty sure he did whatever 
he promised ; and this is the nearest he comes to a positive 
affirmation about anything. And it is rather strange that be 
should be rather sure that he did what he promised, seeing 
that he neither remembers what he did nor what he promised 
about anything. 

On the other hand, W. S. Brantly gives a minute account 
of all the dealings between the parties, when they began, 
when they terminated, the heavy balance due to Rabun & 
Fulton by Hampton, for cash purchases and sight drafts, 
made and accepted on his acoount ; of the appropriation of 
his cotton crop, etc., furnishing Hampton with the acoount of 
sale, and the application of all the proceeds, and Hampton's 
approval, and utterly denies of ever hearing of the under- 
standing and agreement which Hampton thinks he commu- 
nicated. 

It is the most improbable thing in the world, the account 
which the defendant, through his counsel, gives of this case. 
He says, in the face of the account hereto attached, that 
Hampton owed the plaintifis nothing when the note was given 
to them ; and Hampton testifies that he did not owe Rabun 
<& Fulton anything at the time of .making this note, and 
' thinks it was their first dealing. 

This is a very unreasonable statement. By reference to 
the account accompanying the statement, it will be perceived 
that the dealings between the parties commenced in Febru- 



MAOON, JANUARY TERM, 1861. II 

Home va. Planters* Bank of Georgia. 

nry, 1851, and this note was not given till the 25th of No- 
vember thereafter! The trath is, that after crediting Hamp- 
ton with the entire proceeds of his cotton crop, and the cash 
for which this Home note was discounted in bank, $1,978 62, 
it only left a balance coming to Hampton of $87 71 ! 

This being the state of indebtedness of Hampton, is it not 
tiie most improbable thing in the world that Rabun & Fulton 
should have agreed, when they took this note to save iJiem- 
sdvesy that they would pay it out of Hampton's cotton crop 7 
What benefit would it have been to them to take the note 
under such circumstances? Why not apply the cotton crop 
to their current account, instead of raising money upon this 
note, for this purpose, and then promising to pay the note 
with the cotton ? 

And if the giving this note was the first of their dealings, 
what was it given for? Bather a strange way to commence 
dealings between the planter and commission merchant or 
cotton factor. 

But it is useless to waste more time upon this subject. 
The question is too plain. 

When a former suit was brought' on thia note against 
Hampton and Home, jointly, Hampton claimed a credit of 
(500, as the balance due him on Rabun & Fulton's books, 
and said not ono word about this agreement. And that as 
we have shown, wad $415 29 more than he was entitled to — 
the true balance being $87 71. 

In matters of account, it often becomes a material inquiry 
where payments are made, and there are several items of 
indebtedness, who is entitled to make the appropriation, and 
how in case the debtoi' omits to declare his intention, the 
law will apply the payments? There is no doubt but a 
person indebted to the same creditor, on different accounts or 
demands, making payment, may apply the payment to any 
demand he pleases. Hence I remarked that it was wholly 
immaterial as to any understanding between Hampton and 
Home, as Hampton had the right to direct the proceeds of 
his cotton, sold after this note was given, to be applied to 
the payment of the note, if he so pleased. If the debtor fiiil 



12 SUPREME COURT OF GEORGIA. 

Home v#. Plaatera' Bank of Georgia. 

to make the appropriation, the creditor may make suoh appli* 
cation as he pleases. The civil law compels the creditor to 
substitute himself in place of the debtor, and apply the pay* 
ment to that debt which he would first have discharged if he 
were the debtor. (For the civil law rule, as to the appropria- 
tion of payments, see Domat Cushing's Edition 906, et seq.) 

But Chief Justice Marshall, in an early case before the 
Supreme C!ourt, Field vs. Holland, 6 Cranch 8, 27, expressed 
dissatisfaction with the rule of the civil law, which makes 
the application in a manner most favorable to the debtor and 
his wishes/ He said : ^' When a debtor fails to avail him- 
self of the power which he possesses, in consequence of which 
that power devolves on the creditor, it does not appear un- 
reasonable to suppose that he is content with the manner in 
which the creditor will exercise it. It being equitable that 
the whole debt should be paid, it cannot be inequitable to ex- 
tinguish first those debts for which the security is most pre- 
carious." And this is, we think, the weight of authority in 
this country, and the Courts have gone so fiir as to hold, 
that a security, or accommodation endorser, cannot be re- 
lieved at the expense of the creditor. To famish a key to 
the cases upon this interesting subject, I would cite the fol- 
lowing : 

Gordon vs. Hobart, 2 Story's Bep., 243; Bossanquet vs. 
May, 6 Taunton, 597 ; Brooks vs. Enderby, 2 Br. & Bing, 
70 ; Mann vs. March, 2 Caine's JElep., 99 ; Roberts vs. Grar- 
nie, 3 Caine's 14; Baker vs. Stackpole, 9 Cowen, 435; Pe- 
ters vs. Anderson, 5 Taunton, 596 ; Newmarch vs. Clay, 14 
East, 239 ; United States vs. Eirkpatrick, 9 Wheaton, 720 ; 
Moss vs. Adams, 4 Iredell's Eq., 42 ; Ayers vs. Hawkins, 
19 Verm,' 26 ; Logan vs. Mason, 6 Watts & Seig. 9; Stone 
vs. Seymour, 15 Wend, 29. 

Judgment affirmed. 



MAOON, JANUARY TERM, 1861. 18 

Wimberly vs. Collier. 

WlHBEBLT VS. COLUEB. 

Wliere a wtmator of the title of land ii notified of the pendency of an 
action brought to evict his vendee, and he &i\a to make the necessary 
proof to protect the title, he is liable, upon an action of Covenant for 
s breach of his warranty, for the purchase money and interest and 
costs of the case ; and the failnre of the vendee to produce a deed, 
'vUl not excuse him, if he could have successfully defended the action 
vithoat the deed, and the deed itself would not have availed without 
this additional proof. 

Covenant in Dougherty Superior Court. ' Tried before 
Judge Ajllbs, at the December Term, 1860. 

The record in this case exhibits the following vfacts and 
querfoDSy to- wit: 

Od the 25th of April, 1836, Nathan Johnson execated a 
deed in Beaufort District, South Carolina, oonvejring to 
Needham W. Collier lot of land, number 120, in the 8th 
Katriet of originally 'Early, afterwards Baker county, which 
deed was duly recorded in the office of the Clerk of the Su- 
perior Court of Baker county, on the 23d day of December, 
1836. 

On the 3d day of May, 1839, Needham W. Collier exe- 
cuted a deed, conveying said lot of land to Hartwell H. 
Tanrer. 

On the 6th day of February, 1853, Hartwell H. Tarver 
made a deed, by which he conveyed the said lot of land to 
Heniy 8. Wimberly, in trust for Dolly, Aniia Laura, Pal- 
anna and Frederick Ezekiel, orphan children of the late 
Prederick D. Wimberly, deceased. 

On the 12th day of May, 1849, an action of ejectment 
was instituted in the Superior Court of Baker county, in 
iavor of John Doe, on the demise of Eliza McKay, against 
^<:luffd Roe, casual gector, and Henry A. Tarver, as tenant 
in poaseasion. 

Needham W. Colliet had due notice of the pendency of 
«ud action of ejectment against Henry A. Tarver, who was 
ui poaaeaBion of the land as the agent and friend of Henry 



14 SUPREME COURT OF GEORGIA. 

Wimberly w. Collier. 

S. Wimberly, trustee, and Collier employed attorneys to aid- 
in defending the action. 

The action of ejectment was tried at the October Term, 
1853, of Baker Superior Court, and a verdict was rendered 
and a judgment regularly entered up in favor of the plain- 
tiff, against the defendant, " for the premises in dispute, and 
$850 for rent, and costs of suit/' 

On the 18th day of February, 1854, Henry A. Tarver 
filed his bill in Equity, in Baker Superior Court, against 
Eliza McKay, to set aside the verdict and judgment in said 
action of ejectment, on the ground, amongst others, that the 
said Eliza McKay, as the bill alleged, had intermarried with 
the said Nathan Johnson, in April, 1836, and was a femme 
covertf at the time said action of ejectment was brought, and 
at the time judgment was rendered therein ; and on the fur- 
ther ground that Wade Cox, the only witness who testified 
in said action of ejectment, as to the rent of the land in dis- 
pute, and on whose testimony alone the verdict for mesne 
profits was founded, was mistaken in his testimony, and tes- 
tified as to land cleared and cultivated on the premises in 
dispute, when, in fact, the witness had in his mind, at the 
time, land in cultivation on another and difierent lot of land, 
and was grossly mistaken, and has so admitted since the 
trial, and has filed an affidavit to that effect; the bill also 
alleges various excuses for the absence of Henry A. Tarver 
from the trial, the loss of deeds, etc. 

The case in equity resulted in an entire release and dis- 
charge of the said Henry A. Tarver from all liability to pay 
the $850 for mesne profits found by the jury against him in 
the action of ejectment, leaving the verdict and judgment 
for the premises in dispute, and costs of suit, still in full 
force. 

On the 23d day of April, 1855, Henry S. Wimberly, as 
trustee for the orphan children of Frederick D. Wimberly, 
deceased, instituted an action of Covenant in the Superior 
Court of Dougherty county, against Need ham W. Collier, 
to recover damages for a breach of the covenant of warranty, 
in the deed from Collier to Hartwell H. Tarver. 



MACON, JANUARY TERM, 186L 15 

^ > 

Wimberly vs. Collier. 

On the trial of the case in the Coart below, the following 
teetiinony was adduced, to-wit : 

EVIDENCE FOR PLAINTIFF. 

The deed from Collier to Hartwell H. Tarver, convejing 
one-half of three lots of land, to-wit : Numbers 382, 385, 
and 386, in the 2d district of originally Early, now Baker 
county, and all of lot No. 120, in the 8th district of now 
Baker county, which deed recites the payment by Tarver of 
$3,000 for the land, and also contains a covenant to " war- 
rant and forever defend the right and title thereof against 
the claim of all and every person or persons whomsoever/^ 

The deed from Hartwell H. Tarver to the said Henry S. 
Wimberly, as trustee of the orphan children of Frederick 
D. Wimberly, deceased, before mentioned. 

An exemplification of all the proceedings in the action of 
ejectment, before mentioned, with the verdict and judgment 
therein. 

The bill filed by Henry Tarver against Eliza McKay, and 
her answer thereto, and the result of said case. It appeared 
from the answer of Eliza McKay, that she had never inter- 
married with Johnson, as charged in the bill, and that she 
was the drawer and grantee of the lot No. 120, and had 
never sold or conveyed it. The defendant's counsel objected 
to the bill and answer going in evidence, but the Court over- 
ruled the objection, and admitted them for die sole purpose 
of showing that Henry A. Tarver was not wanting in dili- 
gence in defence of the action of ejectment. To this ruling 
plaintiff's counsel excepted. 

John G. Slappy testified : At the time of the trial of the 
action of ejectment, he had the deeds to the land, and, afler 
the case ended, he turned them over to Henry A. Tarver ; 
that no one applied to the witness for the deeds on the trial ; 
that there is no richer land in the neighborhood than lot No. 
120. 

Littleton Philipps testified : That he knew the land 
mentioned in the deed sued on, well ; that all of the lots are 
worth $10 per acre,, taken severally or collectively. 



16 SUPREME COURT OF GEORGIA. 

Wimberly !?*. Collier. 

Henry A. Tabveb^ hy depoeitions, testified : That the 
quality of the land in all four of the lots mentioned in the 
deed sued on^ is about the same ; witness was not present at 
the trial of the action of ejectment ; that he never had, or 
saw, the deed from Johnson to Collier, and does not know 
who had it, when the action of ejectment was tried ; Hart- 
well H. Tarver, the father of witness, is dead, and witness is 
one of his heirs. 

To the third interrogatory exhibited to him, the witness, 
Henry A. Tarver, answered: That, as agent for the plaintiff, 
Wimberly, he expended $108 60 for counsel fees and costs 
in the action of ejectment : which answer the Court, on ob- 
jection made, excluded from the jury. 

EVIDENCE FOB THE DEFENDANT. 

Hon. Lott Wabben testified : that he was employed by, 
and represented, the defendant, Collier, on the trial of the 
action of ejectment ; that on the trial, counsel for the defend- 
ant in the action of ejectment were unable to get the deed, 
or papers, on which the defence relied ; Henry A. Tarver 
was not at the trial, and in consequence of not having the 
papers, the defence could not be, and was not, made out ; 
that Tarver was called, but failed to appear, and nothing 
could be done for want of the papers ; that expecting the pa- 
pers to be present at the trial, he made no application for 
them, either to Tarver or Wimberly. 

Thomas C. Spicer, Esq., testified : That he was one of 
the firm of Piatt & Spicer, employed to defend the action 
of ejectment, and made several applications for the title pa- 
pers in order to prepare the case for trial ; that in 1850, or 
1851, he applied to Henry A. Tarver for the deeds, and was 
told by him that he intended to keep them, because lawyers 
were always losing their papers, and he could not trust them; 
that at the trial neither the papers nor Tarver could be found, 
and the counsel of the defendant had to go to trial without 
them. 

Upon this evidence, and under the charge of the Court, 



MACON, JANUARY TERM, 1861. 17 

Wimberlj m. Collier. 

as set forth in a motion for a new trial, the jury retnrned a 
verdict for the defendant. 

Coaneel for the plaintiff thep made a motion for a new 
trial on the following gronnds, to-wit : 

1st. Becaase the Court erred in excluding the answer of 
the witness, Henry A. Tarver, to the third interrogatory, as 
before stated. 

2d. Because the Court erred in charging the jury as fol- 
lows, to-wit : " That if the defendant in the action of eject- 
ment withheld the title deeds from the use of the warrantor, 
and thereby defeated the defense in the ac(;ion of ejectment, 
by thus withholding the deeds from the defendant, then the 
plaintiff cannot recover in this action. 

^ That to enable the plaintiff to recover in an action for 
breach of warranty in the sale of land, he must prove that 
there is a better outstanding title than that of the warrantor, 
or that he has been ousted by due course of law, without 
default on his part. 

"That if the proof satisfied the jury that the recovery in 
the action of ejectment was a result of the withholding of 
the deeds by the defendant or warrantor on the trial, then 
the plaintiff cannot recover, by force of that recovery, and 
the plaintiff must have resorted to the orighial title, to show 
paramount title in the plaintiff in ejectment. 

" That the statement in the answer of Eliza McKay, to 
the bill filed by Tarver, that she drew the land and it was 
granted to her, is not evidence of that fact as against th^ 
defendant in this action. 

^ That to show paramount title, the grant to Eliza McKay 
was necessary.'' 

3d. Because the Court erred in charging the jury, ''that 
the bill filed by Tarver, and the answer of Mrs. McKay, 
were only to be used as evidence of diligence and want of 
defkalt, on the part of Tarver in defending the action of 
ejectment/' when the main object in introducing them was 
to show that Collier had no defence to the action of eject- 
ment, and to show that if the deed from Johnson to Collier 

2 



18 SUPREME COURT OP GEORGIA. 

Winiberlyiv. Collier. 

bad been in Court, it would have availed the defendant 
nothing. 

4th. Because the Court erred in charging the jury: "That 
if Tarver withheld the deed from Johnson to Collier, on the 
trial of the action of ejectment, from negligence or other 
cause, whether it would have availed Collier anything in de- 
fending the action of ejectment or not, the jury must find 
for the defendant." 

6th. Because the jury found contrary to law, and con- 
trary to evidence and without evidence. 

This motion was overruled, and the new trial was refused, 
and this is the error complained of in this case. 

Henbt Morgan, for plaintiff in error. 

Warben & Warben, for the defendants in error. 
By the Omri. — LuidPKiN, J., delivered the opinion. 

Needham W. Collier sold to Hartwell H. Tarver a tract 
of land, No. 120, in the 8th district of formerly Early, now 
Baker county, which Collier bought from one Nathan John- 
son. Collier made a warranty deed to Tarver, and at the 
same time, turned over to Tarver the deed from Johnson to 
himself. Tarver conveyed the land in trust to H^ry S. 
Wimberly, for the three minors of Frederick D. Wimberly, 
deceased. An action of ejectment was brought against 
Henry A. Tarver, the tenant in possession, by Mrs. Eliza 
McKay, to recover the lot of land, and a judgment rendered 
in her favor for the premises, besides mesne profits and costs. 
Collier was notified of this suit, and was present defending 
it with his counsel. The mesne profits being excessive, or 
rather awarded on the testimony of a witness who was mis- 
taken as to the locus of the land, a proceeding was institu- 
ted in Chancery, to have the error corrected ; and they were 
written off. 

Wimberly, the trustee, now sues Collier for a breach of 
his covenant of warranty, and seeks to recover the price 
paid by Tarver for the land, with interest, together with 



MACON, .JANUARY TERM, 1861. 19 

Wimberly m^ Collier. 

ooansel fees and costs of the litigation. The jury, under 
the ralings of the Court, found a verdict for Collier. A 
motion for a new trial was made on various grounds, and 
amongst the rest, because the verdict was contrary to the 
evidence. The application was refused, and this decision 
was excepted to, and is now assigned as error. 

Owing to the defect in the bill of exceptions, the charges 
of the Court in the case, and various other rulings complain- 
ed of in the progress of the trial, cannot be considered — ^the 
presiding Judge having fisiiled to certify that they were true. 

But it is enough for the purposes of this decision to ex- 
amine the proo&, and see whether the finding was not against 
the evidence. 

It is in proof that Collier had notice of the gectment 
Boit; that he was present at the trial, defending the action 
by his counsel. He seeks to avoid a recovery upon the 
ground that he applied to H. H. Tarver, to whom he turned 
over the deed from Nathan Johnson, under which he claims, 
and that he refused to let him have the deed. 

This deed was not necessary to the defence of the action. 
The land was granted to Mrs. McKay, the plaintiff in eject- 
ment, as a widow. Collier claims under N. Johnson, who 
he allies, was the husband of the grantee. He had only 
to sh'bw the intermarriage of Mrs. McKay, the granteej 
with Johnson, and that would have shown title, out of her. 
Bat this he failed to do on the trial of the ejectment. Had 
the deed from Johnson to him been present, it would have 
availed him nothing, without this additional proof; and that 
proof would have defeated a recovery without the deed ; and 
this proof he failed to make in the present action, which was 
essential to his defence. 

The truth probably is, he can never make this proof. The 
grantee of this land residing alwajrs in the city of Savannah, 
and most respectably connected, never was the wife of Na- 
than Johnson, nor of any other Johnson, nor of anybody 
else, since the death of her first husband, as the proof in 
this record abundantly demonstrales. Nathan Johnson, the 
grantor of Collier, may have married some other woman — 



20 SUPREME COURT OF GEORGIA. 

Little pa, Owen. 

some other widow of that name; whether he did or hot, does 
not appear. 

We think, theny the record of the recovery in ejectment, 
entitled Wimberly, as trastee^ to recover the price paid by 
H. H. Tarver for the land, with interest thereoni and the 
costs of that suit. 

A claim is set up for counsel fees in the ejectment cause, 
and the bill subsequently filed to get rid of the $850 mesne 
profits } and there is respectable authority which holds that 
this is a legitimate item in the assessment of damages for a 
breach of lE^rranty in the sale of land. If. so, why not of 
personal property ? . 

Without deciding this question, which our Courts have 
not fevered, we think the want of diligence on the part of 
Tarver, in defeuding the ejectment, and the fact that Collier 
did employ counsel himself, is sufficint to negative this claim 
in the present case. 

Judgment reversed. 



Little vs. Owex. 

Interest is suspended agiunst a garnishee, daring the pendency of the 
garnishment. 

Complaint in Dougherty Superior Court. Tried before 
Judge Allen, at the December Term, 1860. 

There is but one question presented by the record in this 
case, which arises out of the following state of facia : 

At the December Term, 1859, John T. Dickerson sued 
out a summons of garnishment against Albert 6. Owen, re- 
quiring him to answer on oath what he was indebted to, or 
what effects of Leonard Little he then had in his hands, or 
had at the time the summons of garnishment was served. 
This garnishment continued in Court until the June Term, 
1860, at which time the same was dismissed. 



MAOON, JANUARY TERM, 1861. 21 

Little V8, Owen. 

On the 14th of May, 1860, William G. Little brought aiv 
action against William G. Owen, to recover the amount of 
two promissory notes, for five hundred dollars each, dated 
20th December, 1858, one due six months, and the other, 
twelve months after date, made by said Owen, and payable 
to Leonard Little, or bearer. 

When the case was submitted to the Jury on the foregoing 
&ct8, the presiding Judge charged the Jury: ** That if there 
was a snmmons of garnishment served upon the defendant, 
at the instance of John T. Dickerson, against Leonard Lit- 
tle, by which the defendant, Owen was prevented from 
paying the sum due on said notes sued on, for the space pf 
six months, then said Owen was entitled to a credit for the 
interest accruing on the notes during the six months that he 
was so prevented from paying them, and that it was not 
necessary for said Owen to pay what he admits to be duQ on 
the notes, into Court, unless required so to do, in order to 
entitle him to the credit for said six months' interest/' 

Under this charge, the plaintiff accepted a confession of 
jadgiiient for the amount due on the notes, less the said six 
months' interest, reserving his right to except to the charge 
of the Court, and said plaintiff now asks a reversal of the 
judgment on the ground of alleged error i? flB tfliarge. 

Hikes & Hobbs, for plaintiff in error. 

Stbozieb & Smith, for defendant in error. 

JBy the Court. — Lumpkik, J., delivered the opinion* 

It seems that Albert G. Owen, the defendant in error, 
was gamisheed by John T. Dickerson, to depose what he 
was indebted to Wm. G. Little. The case was pending six 
months, when the garnishment was dismissed. Owen being 
sued by Little on the debt which he owed him, Owen claimed 
to have the interest suspended while the garnishment was 
pending, which the Court allowed, and, we hold, rightfully. 

By the Act of 1856, all other acts upon the subject of 
gttnishment are repealed. No provision is i^de by thi^ 



22 SUPREME COURT OF GEORGIA 

Durham vi, Hartlett. 

act for the garnishee to discharge himself by pajring the 
money which he owes the defendant into Court. He oonld 
not pay it of course; to the defendant. It would seem rea- 
sonable^ therefore, that the interest should be suspended 
during that time. Besides, the defendant will not -lose it. 
He can sue-Dickerson on his bond, and the lost interest will 
constitute an item of damage which Little has snstainekl by 
reason of sueing out the garnishment. 

Wo| express no opinion, whether Owen might not have 
been protected, had an order . been taken requiring him to 
pay the money into CSourt, although *we see no authority un- 
der the Statute for such a proceeding. No order was taken 
in this case. 

Judgment affirmed. 



DUBHAH W. HaBTLETT. 



When D. ft H. enter into a copartnership in a brick-jard, D. giving H. 
his note for a portion of the brick then on hand, his share of the rent 
of the yard for three years, and the brick to be made thereon, and they 
dissolre at the end of eleven months, D. having paid a part of the 
note in the meantime, and the former partners specify minutely what 
each is to do, in settling np the business, and no reference is made to 
the note ; the presumption is that D. is bound to pay the balance due 
thereon. 

Complaint in Dougherty Superior Court. Tried before 
Judge Allen, at the June Term, 1860. 

The facts and questions presented by the record in this 
case, are bs follows, to-wit : 

On the 29th of June, 1854, Daniel Hartlett and Lindsey 
H. Durham entered into a written contract of partnership, 
^' in the business of making and selling bricks,'^ in the city of 
Albany, which was to continue for three years, unless dis- 
solved by mutual consent. Hartlett had a brick yard near 
Albany, with some 30,000 bricks on hand. Durham gave 
Hartlett his^ote for $466, payable the first of October, 1864^ 



MAOON, JANUARY TERM, 1861. 28 

Darbam V9, Hartlett. 

aud famished one two-horse wagon, which, under the oon- 
tract, was to entitle him to one-half interest in all the bricks 
then in the yard, (except 12,000, whish belonged to Hart- 
lett individusklly,) and to one-half of all that might be made 
during the continuance of the partnership. Hartlett then 
had three n^roes employed in the yard, which he was to 
fiimish during that year, and the balance of the hands were 
to be paid for by the firm, to be styled Daniel Hartlett & 
Co. Hartlett was also to fiimish the horses he then had in 
use, for the year 1854, which were to be fed by the firm. 
Hartlett was to give the business his whole attention, and to 
fiimish Durham with a weekly statement of the expenses of 
the concern, as well as all sums of money received^ and all 
Uicks sold, which Durham was to keep properly, in books, 
in which books each partner was to enter all moneys receiv^Ml 
and paid out by him for the firm — the books to be, at all 
times, subject to the inspection of each partner. Under the 
ooatract, neither partner could transfer his interest in the 
concern, without the other's consent, nor bind the firm in 
any way without the consent of the other partner. 

The business continued until the 28th of May, 1855, when 
the partnership was dissolved by written agreement of the 
partners, in which it was stipulated, ^' that the books of the 
firm should be turned over to Messrs. Hines & Hobbs for 
collection, who were also to pay any debt against the firm, 
the justness of which was admitted by either partner, for the 
year 1854 or 1855 ; that Hartlett should take the brick ma- 
chines at cost and expenses, and all the negroes hired by the 
firm, (except Dew's boy,) at the amount given for them, 
which should be charged to him as cash, and he was to take 
op the notes given by the firm for their hire ; Durham was 
to take DeVs boy, at the price for which he was hired, and 
take up the notes given by the firm for the hire ; that these 
notes should be paid promptly ; that Durham was to take the 
yxMn on the kiln, at $7 per thousand, to be counted out to 
him by one chosen by the partners, and the amount to be 
charged to liim as cash. 
After the dissolution of the partnership^ Hartlett occupied 



24 SUPREME CJOURT OF GEORGIA. 

Darham o«. Hartlett. 

and used the brick-jard for his individual benefit^ for several 
years, and until he sold it to one Jared Irwin« 

On the first day of October, 1854, Durham paid Hartlett 
two hundred dollars on the note given for half-interest in the 
brick-jard, at the formation of the partnership, which sum 
was entered as a credit on the note. 

On the. 13th of May, 1856, Hartlett instituted an action 
against Durham, to recover the balance due on the note. 

' Durham pleaded a failure of consideration, and relied on 
the facts hereinbefore stated to sustain the plea. 

The jury found against the plea. 

Counsel for Durham then moved for a new trial, on the 
following grounds : 

1. Because the verdict of the jury was contrary to the law 
and evidence of the case. 

2 Because the verdict was against the weight of evidence. 

3. Because the verdict was without evidence, and against 
the evidence of the plaintiff. 

The presiding Judge refused the new trial, and that decia* 
ion is the error allied in this case. 

Vason & Davjd3, for plaintiff in error. 

HiNES & HoBBS and Wakrek & Warben, for defend- 
ant in error. 

By the Ckmrt. — Litmpkin,';J., delivering the opinion. 

Durham & Hartlett entered into a co-partnership in a 
brick-yard. Durham gave his note for one-half of the 30,- 
000 bricks then on hand, excepting 12,000, and for one-half 
of the yard and the brick to be made for three years. The 
partnership continued eleven months, and was dissolved. 
Durham had, in the meantime, paid $200 on his note, and he 
insists that this payment covered the full amount of his lia^ 
bility in the $500 note. The jury, upon the testimony, found 
otherwise. The Court refused to grant a new trial, and we 
do not feel constrained to reverse his judgment. 

The articles of copartnership, as well as the terms of dia- 



MAOON JANUARY TERM 1861. 25 

Battle vs. Stephens. 

solotioD, are both in writing. In the latter, what each of 
the former partners is to do, is specified, and not' a word is 
said abont this note. Is not the presumption almost irresist- 
ible that it was to be paid ? Otherwise, why was it not 
given ap to Durham ? 
Judgment affirmed. 



Battle v9. Stephens. 

To authorise an injunction, the charges in the bill should not be argnmen* 

tatiTei and inferential only from the facts stated. 
A plaintiff in execution will not be restrained by a Court of Equity from 

collecting his money out of one of the defendants, even though he be 

security only upon the original debt. 

« 

In Equity in Sumter Superior Court. Decision made by 
Judge Ali^, at the October Term^ I860. 

On the 10th of May/ISGO, Henry L. Battle filed his bill 
in Equity, in Sumter Superior Court, against Linton Ste- 
ph^is, Jesse B. Battle, Jr., John B. Evans and Samuel Daw- 
son, in which he alleges : 

That on the 1st day of May, 1857, the said Jesse B. Battle, 
Jr., and John B. Evans, as makers, and complainant as 
security, executed and delivered a promissory note of that 
date, payable to said Linton Stephens, due the 26th day of 
December, 1857, for the sum of $1,500; that immediately 
after the note became due, the complainant notified Mr. Con- 
nell, the agent of Stephens, to proceed to collect the said note 
out of the makers thereof; that on the 15th of July, 1868, 
suit was instituted op said note, and on the 2l8t day of April, 
1859, a judgment was obtained against the said makers, and 
oomplainant as security ; that a writ of fieri fadaa issued 
from said judgment on the 26th of April, 1859 ; that no 
effort was made to collect the amount due on the^. fa. until 
the 5th day of January, 1860, when the^. fa. was levied on 



26 SUPREME COURT OF GEORGIA- 



Battle V9. Stephens. 



a house and lot izi Americas, as the property of Jesse B. Bat- 
tie, Jr., which property was regularly claimed by one Walter 
T. Davenport, on the Ist day of February, 1860; that on 
the 26th of March, 1860, and pending the claim, said fi. fa* 
was levied by the said Samuel Dawson, sheriff of said county, 
on a dose carriage and harness, Us the property of complain- 
ant; that on the 1st day of April, 1860, the claim of Daven* 
port to the house and lot was withdrawn ; that $1,000 has 
been paid on said fi. fa., for which no credit has been entered 
on the same ; that the house and lot if exposed for sale, 
would sell for more than sufficient to pay the balance due 
on the fi, fa.; that since the rendition of the judgment, 
Jesse B. Battle has had in said county of Sumter, three 
negroes worth $3,000,. which might, and ought to have been 
levied on, if necessary to pay off said fi, fa, ; that since the 
rendition of said judgment, complainant believes that Willis 
A. Hawkins, Esq., one of the attorneys of the plaintiff in fi, 
fa,, has paid over to said Jesse B. Battle, Jr., $4,000, which 
sum, or a part thereof, might have been applied to the pay- 
ment of the sum due on the^. fa,, if it had not already been 
paid off by said Jesse B. Battle, Jr., or said John R. Evans ; 
that at the time the judgment was rendered, Evans owned a 
valuable body of land, which he has since sold for $6,000, or 
other large sum, and which land is subject to the fi, fa., if it 
. has not been paid off; that since the^ fa. issued, Evans has 
been permitted to move from the county of Sumter, and to 
carry with him personal property worth ten thousand dollars, 
or other large sum, which the plaintiff would not have per* 
mitted, if the fi, fa, had not been paid off in full, and that 
said Evans owned a house and lot in Americus which is sub<- 
ject to the fi, fa,, if unpaid, which house and lot are worth 
$2,500, or other large sum ; that from the facts aforesaid^ 
ooniplainant believes and charges, that said fi, fa,, though 
paid off, is on some account fraudulently kept open by the 
plaintiff in fi, fa; and the makers of said note, to defraud 
complunant out of the whole amount apparently due on said 
fi.fa.; that he, complainant, cannot prove the payment of 



MACON JANUARY TERM 1861. 27 

Battle 98. Stephens. 



said)!, fn., except one thousand dollars, without a discovery 
from the defendants to this bill. 

The bill prays, amongst other things, that the sale of the 
carriage and harness be enjoined. 

The injunction prajed for was granted. 

Upon a rale taken for that purpose, sind after argument 
had thereon, the injunction was dissolved, and this decision is 
the error alleged by the record in this case. 

WoKBiLii & Hawkins, for the plaintiff in error. 

McCay & Hawkins, for the defendants in error. 

By the Churl — ^Lumpkin, J., delivering the opinion. 

Linton Stephens recovered judgment for $1,500 against 
Jesse B. Battle and John R. Evans, as principals, and Henry 
L. Battle as security. The execution issuing on the judg- 
ment, was levied on a house and lot in Americus, in January^ 
1860, as the property of Jesse B. Battle, and claimed by 
Walter T. Davenport. In March, thereafter, the jj. /a. was 
levied on a carriage and harness, as the property of the 
security, Henry L. Battle. At the April Term, 1860, of the 
Court, Davenport withdrew his claim, and in May, 1860, a 
month only afterwards, Henry L. Battle filed this bill, 
alleging various reasons why the creditor, Stephens, should 
be compelled to make his money out of Jesse B. Battle's 
property, and that of the other principal. He infers, from 
the fibcts charged, that the debt is paid, and argues to show 
it might have been, and ought to have been satisfied. The 
difficulty 18, he no where asserts that it was, except a $1,000, 
and that he admits he is able to prove without resorting to 
the conscience of the creditor for discovery. 

Bnt the main ground upon which he seeks to protect his 
property from sale is, that the house and lot which Daven- 
port claimed is sufficient to discharge the execution after 
crediting it with the $1,000. Perhaps this is true, and that 
it will be sold, and the money so applied. The bill was filed 
before the plaintiff in fi. fa. had an opportunity of proceed- 



28 SUPREME (X)URT OF GEORGIA. 

Dean vs, Mnnroe. 

ing with the levy. Bat suppoae the creditor sees fit to sell the 
security's property first, upon what principle will a Court of 
Equity interfere to prevent him ? We know of none. It is 
his legal right to do so. Believing, as we do, that there is 
no distinct allegation in the bill, that the execution iff paid, 
and that the ground to which I have alluded is not sufficient 
to sustain the injunction, we affirm the order of the Court 
dissolving the injunction. 

We take no notice of the complaint, that the counsel was 
cut off by the Court from concluding his argument upon the 
motion, as it is not supported in point of fact by his Honor, 
the Judge. He certifies, that he supposed the speech was 
finished ; and I can well understand how there should be an 
honest mistake in this respect. I know, experimentally, 
that I am sometimes kept in painful suspense for several 
minutes, not being able to decide whether the argument is 
closed. In such a case, counsel should suggest that he desired 
to be heard further, and, of course, the Court would readily 
accord the privilege. 

Judgment affirmed. 



Dean vs. Mukroe. 

A new promise, made by the maker of a promissory note, is not safficient 
to take it oat of the operation of the Statute of Limitations as against 
an indorser. 

Action on a promissory note, in Bibb Superior Court. 
Tried before Judge Iyebson L. Habeis, at the May Term, 
I860. 

On the 18th day of October, JL858, Nathan C. Munroe 
instituted an action, in Bibb Superior Court, against Geoi^ 
M. Logan & Co., as makers, and James Dean, as indorser, 
to recover the amount of a promissory note, of which the fol- 
lowing is a copy, to-wit : 



MACJON JANUAEY TERM 1861. 29 

Dean f». Manroe. 

" $1,000 Macon, Deo. 23, 1851. 

''Four months after date we promise to pay to the order 
of James Dean, one thousand dollars, value received. 

Geo. M. Logan & CJo.'' 

This note was indorsed by the said James Dean, and had 
entered upon it a credit as follows, to-wit : 

"$293 59. Received on the within note two hundred and 
ninety-three dollars and fifly-nine cents, in a part of claim 
for that amount on Miss Jane Irwin. 

January 1, 1853.'' 

To this action Dean pleaded the Statute of Limitations. 

On the trial of the case in the Court below, it appeared in 

evidence: that Dean was an accommodation indorser of the 

note, and had no interest in the consideration thereof; that 

the credit was a bona fide payment, made by Logan, at the 

time it beats date ; that Dean knew of the payment shortly 

ifler it was made, but whether he knew of it at the time of 

the payment did not appear; that on the 6th of March, 1852, 

Dean promised Greorge M. Logan, that he would pay the 

nate sued on, if he, Logan, would turn over to Asa Holt 

certain assets of the firm of Logan & Atkinson; that the 

aasets were turned over accordingly ; that Dean had received 

of Logan & Co. assets, to secure him for any indorsements 

made by him for said Logan & Co. ; and that the note sued 

on was lodged in bank for collection, and that the note was 

protested for non-payment, on the 26th of April, 1852, by 

Peter Solomon, Notary Public. 

Counsel for defendant Dean objected to the introduction of 
the note as evidence against said Dean, because neither the 
payment by Logan, nor the promise mp.de by Dean on the 
6th of March, 1852, took the case out of the operation of 
the Statute of Limitations as against Dean. 

This objection was overruled by the presiding Judge, who 
decided that by the Act of 1826, Dean was security, and was 
liable as such, and that therefore the payment made by Logan 
on the note, arrested the operation of the Statute of Limita- 
tion m &vor of Dean. 



30 SUPREME COURT OF GEORGIA. 

Dean tw. Munroe. 

■ 

The jury returned a verdict in fkvor of the plaintiff, 
against Dean, for the principal and interest of the note, the 
protest fee and costs of suit. 

The plaintiff in error asks a reversal of the judgmenty 
because of error in the said decision and ruling of the Court. 

C. B. Cole for plaintiff in error. 

L. N. Whittle for defendant in error. 

By the Court — Jenkins, J., delivering the opinion. 

The principal question in this case is, whether a promise 
made by the maker of a promissory note, is sufficient to take 
the case out of the Statute of Limitations^ as against the 
indorser. 

This question was elaborately argued, and upon great 
deliberation decided by this Court, at the Savannah term, in 
June, 1860, the case being still unpublished. 

The Court held, in that case, that the new promise of the 
maker was not sufficient to take the case out of the Statute as 
i^ainst the indorser. To that decision we adhere. 

The only other question in this case grew out of a new 
promise made by the indorser himself; but the record shows 
that that promise, as well as the orignal undertaking, wa& 
barred by the Statute. 

We, hold, therefore, that the Court below erred in admit- 
ting the note in evidence, and that there was error in the final 
judgment, which is reversed. 

Judgment reversed. 



MACON, JANUAET TERM, 1861. 31 

Roberts V8, Thomas. 

Roberts pb. Thomas. 

Execatonhip is an office ] and each executor is equally entitled to par- 
ticipmte in the profits thereof; and no one has the light to seize and 
appropriate the whole of the assets, to the exclusion of the ot>^er8. 

Where there are two executors, and they both join in a credit sale of the 
property of the testator — the terms of the sale not being prescribed by 
the will — and one of them who is a trustee for a legatee, consents that 
his co-executor shall take charge of all the proceeds, he makes himself 
liable to his eettui que tnut for her portion. 

A jary is justifiable in decreeing that a trustee, who is executor also of 
the estate from which the trust fund is derived, who accounts to his 
cesfifi que trust for the yearly interest, and pays tax on the fund as 
troftee, has the trust fund in hand. 

When a complainant is justifiable for sueing a trustee, to recover or 
secure a trust fund in the hands of the defendant, the solicitor's fees of 
the trustee will not be allowed for resisting the bill. 

In equity, in Bibb Superior Court. Tried before Judge 
liAMABy at the May Term^ 1861. 

Thequeetions presented for adjudication^ in this case^ arose 
out of the following state of facts, to-wit: 

On the 7th of May^ 1847, Reuben Roberts published his 
will ; by the first item of which he bequeathed lands, negroes 
and other property to his wife, Kancy Roberts, for and 
daring her natural life-time, or widowhood, and, at her death 
or marriage, the said lands, negroes and other property, to be 
equally divided amongst his children — ^the life-interest in the 
land to be in lieu of his wife's dower. By the second item of 
the will, the testator directed that all the residue of his prop- 
erty, of every kind and description, should be sold, and the 
proceeds there<^, together with the money on hand at his 
desth, his notes, accounts, etc., should, after paying his debts, 
foneral expenses, and the expenses of administering his estate, 
be divided into eight equal parts, or shares. The testator 
bequeathed one of the shares to his son, Luke Roberts, in 
troat and confidence that he would place the same out at * 
iotereBty and keep the same at interest until the death of 
Charles Thomas, the husband of his daughter, Martha Ann 
Thomas ; and from and immediately after the death of the 



32 SUPREME COURT QF GEORGIA. 

Roberts vs, Thomas. 

said Charles Thomas, his said daughter surviving him^ then 
in trust and confidence, that the said Luke Roberts will 
deliver the said part, or share, with the profits and increase 
thereof, to his daughter Martha Ann Thomas, to be equally 
divided between her and her children then living, free from 
all other and further trust ; and in the event of the death of 
the said Martha Ann Thomas, before her husband, the said 
Charles Thomas, then said share and its increase to be equally 
divided amongst the other children of the testator. The will 
furthermore provided, that if the wife of the testator should 
die before the death of the said Charles Thomas, then the 
portion to which Martha Ann Thomas would be entitled, in 
the property bequeathed to testator's wife during her life or 
widowhood, should be vested in the said Luke Roberts as 
trustee, subject to the same trusts as before set forth relative 
to the eighth part or share aforesaid. 

John Roberts and Luke Roberts were appointed executors 
of the will. 

On the 8th of July, 1860, the testator published a codicil 
to his will, in which, after reciting the death of his son, Wil- 
liam Jackson Roberts, since the making of the will, directed 
that his property not willed to his wife, should be divided 
into seven shares, after the sale of the same, among his chil- 
dren, and as directed in the will, with the alteration, that the 
share of Martha Ann Thomas shall be held in trust by Luke 
Roberts, for the sole and separate use of the said Martha Ann 
Thomas, for and during her natural life-time, the interest 
thereof to be paid to her annually, for the separate use and 
support of herself and children, and, at. her death, the said 
part or share should be divided among her children ; and her 
death, before the death of her husband, shall not defeat the 
right of her children. 

The codicil further directed and provided, that the testa- 
tor's daughter, Martha Ann Thomas, should have his negro 
woman Peggy, and her child, I^eaner, with their future 
increase, after the death of the testator's wife, for her entire 
share and interest in that property willed to his wife, during 
her life or widowhood ; the said Peggy and child, and their 



MACON, JANUAEY TEEM, 1861. 33 

Boberts vs. Thomas. 

increase, to be the sole and separate property of the said Mar- 
tha Ann Thomas, for and during her life*time, and at her 
death to be equally divided among her children ; no portion 
of the property falling to the said Martha Ann Thomas, 
under the will and codicil, to be subject in any manner to the 
debts of her husband. 

The testator afterwards died, leaving the will and codicil 
in full force, and they were duly proved and recorded, and 
the nominated executors were duly qualified, and assumed 
the execution of the will and codicil, and the said Luke Bob- 
erts assumed the trust imposed upon him, as trustee of his 
sister Martha Ann Thomas. 

The executors sold the property, as directed by the will, 
and divided the proceeds into shares amounting to $2,286. 
On the 31st of May, 1857, Mrs. Nancy Roberts, the wife of 
the testator, departed this life. 

On the 10th of October, 1857, Martha Ann Thomas, by 
her next friend, Methvin S. Thompson, filed her bill in 
equity, in Bibb Superior Court, against her trustee, Luke 
Roberts, in which she alleged the foregoing facts, and also, 
that said trustee, as such, received the sum of $2,286, some 
five years before the filing of the bill ; that he has failed to 
to invest the fund in any kind of security, or to put it out 
and keep it at interest, but has used it for his own purposes ; 
that recently he has even failed to pay to the complainant the 
interest accruing on the fund, and complainant had to take 
his note for it ; tliat said trustee is embarrassed, and com- 
plainant believes that he is unable to pay his debts,; that he 
is threatening to sell and dispose of his negroes, and has no 
title (as he says) to the land he now claims ; that he claims 
the right to the possession of Peggy and her child, and the 
right to hire them for complainant, and pay her the hire 
annually ; that if the trustee disposes of his negroes, as he has 
said be would do, complainant will be left without the pros- 
pect of obtaining her rights from her said trustee. 

The bill prays, amongst other things, a writ of quia timet^ 
requiring the said Luke Roberts to enter into bond, with 
good security, obliging himself to invest the funds in his 

3 



34 SUPREME C!OURT OF GEORGIA. 

Roberts vs. Thomas. 

hands, as trustee of compIaiDant^ in some safe and suitable 
manner^ and to pay to complainant the annual interest or 
increase thereof; and also that he be enjoined from inter- 
rupting complainant in the possession and use of the negrpes 
P^g7 and her child ; and that said Luke Roberts be removed 
from his said trust, and some other proper and suitable per- 
son be appointed trustee in his stead. 

The bill was sanctioned, and the writs issued as prayed for« 
The defendant filed his answer to the bill, in which he ad- 
mits the truth of all the material allegations in the bill, ex- 
cept as to the sum received by him as trustee for complain- 
ant. On that subject his answer alleges : that complainant's 
share is correctly stated in the bill; but that he only received 
from the estate of testator the sum of twelve hundred and 
seventy-four dollars and five cents, as the trustee of complain- 
ant ; that said sum of twenty-two hundred and eighty-six 
dollars ought to have been on hand at least by tha. 1st of Jan- 
uary, 1853, the property of the estate of testator having 
been sold on twelve months' credit, and the will having been 

proven on the day of July, 1851 ; that John Roberts, 

defendant's co-executor, and older brother, being more con- 
versant with business affairs than defendant, the possession of 
the notes for which the property of testator sold, as well as 
the duty of collecting the money due thereon, were confided 
to the said John Roberts ; that many of the notes were un- 
paid at maturity, and that their collection was for some pur- 
pose delayed, until a short time before the death of his bro- 
ther and co-executor, John Roberts, in 1854 or 1865 ; that 
in January, 1853, defendant called on his brother, and de- 
manded payment of the legacy due complainant, and contin- 
ued to call on him, from time to time, and received but one 
thousand two hundred and seventy-four dollars and five 
cents, leaving still due one thousand and twelve dollars and 
twenty-one cents ; that his said brother died suddenly, and so 
soon as he could do so, he filed a bill, in Baldwin Superior 
Ck)urt, against the representative of his brother's estate, to 
recover the balance due defendant, as trustee of complainant ; 
that said bill is still pending and undetermined ; that he has 



MACON, JANUARY TERM, 1861. 36 

Roberta r«. Tbomaa. 

( 

paid eomplaioant the interest on the entire amopnt of her 
share, and has given it in and paid tax on the whole amount, 
because the same was drawing interest, and complainant was 
entitled to the same, and because the said sum was taxable, 
and defendant believed that he ought to return it as in his 
hands. As to the negroes, Peggy and child, he submits to 
the Court that, under the will, as trustee, it is his duty to 
take possession of them, as he is advised, and believes that 
the trust, both as to the money and the negroes, is a personal 
trost^and that he cannot escape responsibility to the children 
of complainant, who have an interest in remainder in the 
property, unless they were parties to this case, so as to be 
concluded by the decree rendered therein. The defendant 
further answers, that he has fully paid to complainant all the 
interest due on her said share of said estate, and that she is 
indebted to defendant three hundred and eighty-six dollars, 
principal, besides interest, on two promissory notes, which, 
together with his counsel fees in this case, he asks may be 
allowed him in the. settlement relative to said trust funds. 

The children of Martha Ann Thomas were made parties 
complainant by their next friend, without requiring additional 
answer from the defendant, they adopting the allegations of 
the bill. On the trial of the case, it appeared in evidence 
that when the property belonging to Reuben Roberts' estate 
was sold, and the shares of the legatees ascertained, the 
amount of each share was $2,286 36, and also that defendant 
gave in, as trustee for complainant, the sum of $2,286 26, 
as money and debt due from solvent debtors, in the year 1857. 

The defendant introduced the receipt of complainant for 
the interest paid to her, and also the two promissory notes 
pleaded in his answer. 

The jury returned the following verdict and decree, to-wit: 

'*We, the jury, find and decree, that there is in the hands 
of the defendant, Luke Roberts, trustee for complainants, the 
principal sum of twenty-two hundred and eighty-six dollars, 
that being the amount of their legacy under the will of Reu- 
ben Boberts, deceased. We also find and decree the sum of 
five hundred and forty-seven dollars and one cent, interest on 



36 SUPREME COURT OF GEORGIA. 

Roberts V8, Thomas. 

said principal sum due Martha Ann Thomas, up to the first 
day of June, 1860. We further find and decree that the two 
notes of Maltha Ann Thomas and Luke Wilder, pleaded by 
the defendant, amounting to three hundred and eighty-six 
dollars, principal, and thirty-eight dollars and twenty-two 
cents interest, amounting to four hundred and twenty-four 
dollars and twenty-two cents, be applied as part payment of 
said interest, and that the notes be cancelled and given up, 
and that the said Martha Ann, by her said next friend, do 
recover of the defendant the sum of one hundred and thirty- 
two dollars and seventy-eight cents, it being the balance of 
said interest due to this date. We further find and decree 
that said Luke Roberts be continued as the trustee of com- 
plainanti and hoTd the legal title for said principal sum here- 
inbefore decreed, and for the negroes Peggy and Leaner, and 
their increase, l»e allowing the said Martha Ann Thomas the 
use and control of said negroes, for and during her life, and 
that said Luke Boberts do give bond and sufficient security 
for the faithful performance of said trust. We further decree 
that the complainant pay the costs of this suit." 

Counsel for the defendant then moved for a new trial of 
said case, on the following grounds : 

1. Because said verdict, finding in the hands of defendant 
$2,286, for complainant, is contrary to evidence^ without 
evidence, and strongly and decidedly against the weight of 
the evidence in the case. 

2. Because the finding is against the following charge of 
the Court, to-wit : " that one co-executor is not liable for 
moneys collected by the other, in the regular course of the 
administration of an estate." 

3. Because said verdict is contrary to law, against the evi- 
dence, without evidence, and strongly and decidedly against 
the weight of evidence, in not decreeing that reasonable coun- 
sel fees should be allowed the defendant for the defence of 
this suit. 

4. Because the verdict is not so framed, in accordance with 
the proofs of the case^ as to enable the defendant to continue 
the prosecution of his said suit^ in Baldwin Superior Court, 



MACON, JANUARY TERM, 1861. 37 

Roberts vs. Thomas. 

against the administrator of his co-executor, for the residue 
of said legacy, never collected by the defendant. 

The Judge presiding refused to grant the new trial, and 
that refusal is the error alleged in the record in this ease. 



B. Hill, for plaintiff in error. 

PoE, Gbier & PoE, for defendants in error. 

Btf the Omrt — Lumpkin, J., delivering the opinion. 

Was the decree rendered in this case in accordance with 
the law and testimony ? 

It is argued that John Roberts, as executor, had a right to 
take possession of all the assets, and that having done so, 
Luke Roberts is not liable until and unless he recovers the 
balance coming to his sister, Mrs. Thomas, out of the estate 
of John Roberts, his co-executor. Is this so? The sale 
was the joint act of both. What right had Luke Roberts 
to consent that the whole proceeds should go into the hands 
of his brother? He had an important trust to perform 
under the will of his father, to- wit: to recover the legacy 
coming to Mrs. Thomas, and to invest it, paying her over 
the accruing interest. No matter where the contrary doc- 
trine is asserted, I deny that either of two executors is en- 
titled to take possession of the whole of the assets of the 
testator, to the exclusion of the other. To be appointed 
executor is to be invested with an office of profit. What 
right has either to appropriate the whole to himself? But 
00 such case is made in this record. Luke Roberts consent- 
ed that John Roberts should take charge of everything. This 
was his own act, for which he is and should be held respon- 
sible, under the facts of this case. He had the right to allow 
his own portion to go into the hands of his co-executor, but 
he could not consent for his sister's portion to be thus appro- 
priated. As it respects this, he had a duty to discharge. 
She could not act, only through and by him ; he was bound 
to act for her. 



38 SUPREME COURT OF GEORGIA. 

Roberts V8, Thomas. 

Agsin^ the will of the testator does not direct a credit 
sale. It would rather seem that a cash sale was contem- 
plated ; the proceeds, together with the cash on hand, was 
directed to be divided among the legatees, and the share 
coming to Mra Thomas was to be loaned ont by Lake 
Roberts, her trustee. Be this as it may, the executors, in 
selling upon time, exercised their own discretion. It was 
the joint act of both, and each is responsible. 

Waiving this aspect of the case, and also the question of 
diligence in collecting this fund, eight years having elapsed 
since the sale notes fell due, the defendant has paid interest 
yearly on the whole amount, $2,286, and tax, as trustee for 
Mrs. Thomas, on that sum, which ought to have been paid 
by the executor, if the fund still remained in his hands. I 
say, did not these circumstances authorize the conclusion that 
the whole legacy was turned over? If so, Mrd. Thomas was 
justifiable in filing her bill, and the jury, in decreeing for the 
whole amount of $2,286, and also in disallowing attorney's 
fee for defending this proceeding. 

As to so much of said decree as compels the trustee to give 
security, we should dislike, in any case, to control the dis- 
cretion of the Judge and special jury in a matter of this sort. 
The trustee may be worth three times the amount of the 
trust fund, still he admits his property is not very large, and 
that he has sold a tract of land and three negroes. In other 
words, he is converting his visible property into mmiey and 
choses in action, which may be much more readily wasted qr 
made away with than land and negroes. 

As to the pecadiUy amount of intwest, it is too small, if 
true, to require correction. 

As to the complaint, that the decree is so shaped as to hin- 
der the defendant from recovering from John Roberts' estate 
the balance unaccounted for, we have only this to say, that 
the decree could be amended without prejudice to the rights 
of the complainant. No objection could be interposed. 
But suppose this cannot be done, the fault lies at the door of 
the defendant, by neglecting to retain, as he had a right to 
do, enough in his own hands for his oedui que trud^ or for 



MACON, JANUARY TERM, 1861. 39 

Roe & McDowell vs. Doe, ex dem., Irwin. 

not i^oceeding more promptly to recover it. Courts cannot 
protect parties, however innocent, from the consequences of 
their own wilful neglect or mismanagement. 
Jadgment affirmed. 



Ro£ & McDowell vs. Doe, ex. dem. Irwin. 

1. The affidarit of a plaintiff in ejectment, that a certain deed had been 
in existence, and had b«en destroyed by fire, as he verily believes, and 
that it is not in his possession, power or eontrolf is a sufficient com- 
pliance with the 60th Common Law rule of practice of the Superior 
Court, to authorize the introduction of a copy. 

Z In such an action, the affidavit of a man who, at the time it was made 
and filed in Court, was one of plaintiff^ s lessors, from whom a demise 
was laid, bat whose demise was by amendment stricken from the de- 
claration, by reason of his death, may properly be considered by the 
Goart to show the destruction of an orignal paper, preliminary to the 
iatroduction of secondary evidence. 

8. The fact appearing upon the face of a copy grant, that in one place 
the frantoe's name was written, ^^Loyons,^* whilst in other places it 
was written ^'Ljfons,*^ is not a sufficient objection to its admission as 
evidence. It should be referred to the jury to determine whether or 
not it was a clerical error. 

4. Proof that a deed had been in existence and had been destroyed, is a 
sufficient fonndation, at Common Law, for the introduction of secon- 
dary evidence of its contents. 

6. After sach fonndation laid, the parol evidence of a subscribing wit- 
ness, stating who w«s the grantor, who was the grantee, what the sub- 
ject of conveyance was, the consideration stated, the year wherein the 
deed was made, and that it was signed, sealed and delivered in pres- 
ence of witness and another, who subscribed it as witnesses, should be 
referred to the consideration of the jury as evidence of the contents. 

6. Evidence that an original deed was in witness' possession at a time 
when a trunk, in which, with other papers, it had been kept, was bro- 
ken open and robbed, since which he has been unable to find it, suffi- 
ciently accounts for its absence to authorize the introduction of a copy. 

7. Upon evidence, sneh as that detailed in the 5th Syllabus, it is npt 
error in the Court to charge the jury that if that evidence satisfied 
them that the grantor named had made a deed as described to the 
grantee named, they were authorized to find that the title passed from 
the former to the latter. 

8. and 9. If A. and B. being grand-mother and father of C, contr*^ 



:v^A^ 



40 SUPREME COURT OF GEORGIA. 

Roe & McDowell vs. Doe, ex dem.f Irwin. 

to farniflh the consideration of the purchase of a tract of land, (A. 
paying money and B. giving his notes^) for C, an infant, and the deed 
be executed to C, it will be a good conveyance to him, and in the ab- 
sence of fraad, he will hold the land against a subsequent purchase at 
Sheriff's sale, under a judgment against B. founded on said notes. 
10. There being evidence on both sides of a case, to the material points, 
the verdict will not'be set aside, as contrary to the weight of evidence, 
unless it be strongly and decidedly so. 

Ejectment; in Stewart Superior Court. Tried before Judge 
Perkins^ at the October Term^ 1860. 

This was an action of ejectment brought in favor of John 
Doe^ ex. dem, William H. Irwin, against Richard Roe, casual 
ejector, and John McDowell, tenant in possession, for the 
recovery of lot of land Number 50, in the 22d district, of 
originally Lee, now Stewart county. 

The defendant pleaded the general issue, and the Statute 
of Limitations. 

On the trial of the case in the Court below, the following 
testimony was adduced on the part of the plaintiff, to-wit : 

An affidavit of William H. Irwin, the lessor of the plain- 
tiff, of which the following is a copy : 

"Georgia, Stewart County: 

"William H. Irwin comes before me, the undersigned, 
and on oath says, that he is advised, and verily believes, that 
the original plat and grant, from the State of Georgia, to 
Elizabeth and Harris Lyons, for lot of land number fifty, in 
the 22d district of originally Lee county, now Stewart coun- 
ty ; and the original deed from the said Elizabeth and Harris 
Lyons, to Willis Barrington for said lot of land, dated soqie* 
time in the Spring or Summer of 1835 ; also the original 
deed from the said Willis Barrington to Richard Mathias, 
for said lot of land, dated in August or September^ 1835, 
were all once in existence, in the possession of the said Richard 
Mathias, in his -house, when said house was burned in the 
town of Roanoke, in the year 1836, and that he is advised, 

and verily believes, that said original plat and grant, and 
said original deeds, were then and there destroyed by fire in 

the house of the said Richard Mathias, in the said town of 



MACON, JANUARY TERM, 1861. 41 

Roe & McDowell vs. Doe, ex dem., Irwin. 

Roanoke, and that neither the said plat and grant^ or either 
of said deedSj are in the possession, power or control of this 
deponent.'^ 

This affidavit was duly signed, sworn to and attested. 

An original affidavit made by the said Kichard Mathias, 
who was, at the time it was made, one of the lessors of the 
plaintiff, but who had subsequently died, and his name strick- 
en from the record by amendmept made under an order of 
Court, of which affidavit the following is a copy, to- wit : 

" GsoBGiA, Stewabt CSounty : 

" Before me, William J. McRea, a Justice of the Peace in 
and for said county, personally came Richard Mathias, who 
on oath says, that the orignal plat and grant from the State 
of Georgia, to Elizabeth and Harris Lyons, for lot of land 
number fifty, in the 22d district of originally Lee, now Stew- 
art county ; also, an original deed from the said Elizabeth 
and Harris, to Willis Barrington for said lot of land, dated 
sometime in the Spring or Summer of 1835 ; also an original 
deed from the said Willis Barrington to this deponent for 
said lot of land, dated in the month of August or September, 
in the year 1835, were once in existence, and in defendant's 
possession at the time his house was burned with the iown 
of Roanoke, in the year 1836, and that none of said papers 
are in the possession, power or control of this deponent, all 
of them having been destroyed by fire at the time of the 

burning aforesaid/' 

• 

This affidavit was duly signed, sworn to, and filed in the 
Clerk's office at the time it was made. 

Upon this accounting for the absence and non-production 
of the original papers, the plaintiff read in evidence : 

A copy plat and grant from the State of Georgia, in which 
the premises in dispute are given and granted to Elizabeth 
and Harris Lyons, illegitimates of Gray's district, Henry 
oonnty ; but in the habendum d Unendum their names are 
written Elizabeth and Harris Loyons, and on the plat, oppo- 
site the number of the lot, there is a memorandum of: 



42 SUPREME COURT OF GEORGIA. 

Roe & McDowell vs. Doe, ex dent., Irwin. 

" drawn by Elizabeth and Harris Lyons, (lU'g'tfi) Morgan's 
district, Henry county." 

Henry Irwin and Mary Irwin testified : That WU- 
liam H. Irwin is their son, and was born on the 22d day of 
September, 1831 ; that the land in dispute belongs to the 
said William H. Irwin, having been conveyed to him by 
Richard Mathias, by regular deed; that the land was paid 
for by Arabella Corbitt, the grand-mother of the said Wil- 
liam H. Irwin, and the deed was made by Mathias to the 
said William H. Irwin, by the special directions of the said 
Arabella Corbitt; that the witness, Henry Irwin, did not 
pay his money, or any part of his money for said land, nor 
was he in debt at the time the deed was made ; that the pur- 
chase money, $1,000, was paid by Arabella Corbitt in the 
year 1838; the deed was signed, sealed and delivered, in 
the presence of Elijah Miller and William Fitzpatrick, J. 
P., and others ; that the last time the witness saw the deed, 
it was in the possession of witness, Henry Irwin, and in a 
trunk of said witness, which was broken open whilst the 
witness was absent from home, and, as both witnesses verily 
believe, the deed was stolen or taken away, and the witnesses 
do not know where it is ; that neither of the witnesses are 
interested in the event of this suit. 

John P. Lyons testified : That some time in the year 1833, 
Elizabeth Lyons and Harris Lyons, sold the lot of land in 
dispute, to Willis Barrington, for the sum of $50, and re- 
ceived the money therefor; that the said Elizabeth and Har- 
ris, signed, sealed and delivered a deed for said land to the 
said Willis Barrington, which deed was executed in Henry 
county, Georgia, and witnessed by the said witness, John P. 
Lyons, and some one else not now remembered ; that at the 
date of the deed, Elizabeth was about twenty-nine years old, 
and Harris was about twenty-seven years old. 

John B. Robinson testified : That he saw Willis Barring- 
ton sign, seal and deliver to Richard Mathias, a deed for the 
land in dispute sometime in the year 1835, in August or ^p- 
tember ; that the consideration money was paid by Mathias 
to Barrington, and the deed was witnessed by Frederick 



MACON, JANUARY TERM, 1861. 43 

Roe k McDowell vs. Doe, ex dem,, Irwin. 

Mills, and by witness, who was, at the time, a Justice of the 
Peace of Stewart county, where the deed was executed, and 
who signed and witnessed the deed in his official character; 
the deed was a warranty deed, in the usual form of such 
deeds, and written by the witness. 

Plaintiff then read, in evidence, a certified copy from the 
records of the Clerk's office of Stewart Superior Court, of a 
deed from Kichard Mathias, to William H. Irwin, recorded 
the 25th of April, 1839, of which the following is a copy : 

"Gbobqia, Stewabt County : 

" This indenture, made between William Henry Irwin, of 
the county and State aforesaid, of the one part, and Rich- 
ard Mathias, of the same county and State aforesaid, of the 
other part, witnesseth, that the said Richard Mathias hath, 
this day, bargained and sold nnto the said William Henry 
Irwin, a certain lot of land, lying and being in the twenty- 
second district of originally Lee, now Stewart county, known 
and distinguished in the plan of said district as lot number 
fifty, for and in consideration of $1,000, to him in hand 
paid, the receipt whereof is hereby acknowledged, where- 
fore the said Richard Mathias, his heirs, executors, adminis- 
trators and assigns, do warrant and defend the right and 
title to siud lot, from the claim of the said Richard Ma- 
thias, and his heirs, and executors, administrators and as- 
signs, or any other person whatever, unto the said William 
Heniy Irwin, son of Dr. Henry Irwin, about six years old, 
his heirs, executors, administrators and assigns, in fee simple 
forever. In witness whereof, I have hereunto set my hand 
and seal, this the 4th day of June, 1838. 

^'Signed, sealed and delivered in the presence of Elijah 
Kffler, C. D. Riden and William Fitzpatrick, J. P. 

"RICHARD MATHIAS, [l. s.] 
"JOSHUA H. ALSTON." 

/■ 
The usual affidavit of the plaintiff to let in this copy deed 

^^ waived by counsel for defendant. 

When the affidavit of Mathias ; the copy plat and grant; 



44 SUPREME COURT OF GEORGIA. 

Roe A McDowell vs. Doe, ex dem.y Irwin. 

; ,j 

the testimony of John P. Lyons; the testimony of John R. 
Robinson ; and the copy deed from Mathias to Irwin, were 
tendered in evidence, they were each and all objected to by 
counsel for defendant, and the objection overruled. 

John McDowell testified : That, as the overseer of Rob- 
ert Toombs, he was in possession of the land in dispute on 
the 26th of September, 1854, the day on which this action 
was commenced; that he had been in possession since 1849; 
that there were forty acres cleared land on the lot, which was 
worth the sum of $60 per annum for rent, since the year 
1849. 

The plaintiff then closed, and counsel for defendant moved 
a judgment of non-suit, which motion the Court overruled. 

The following testimony was then introduced by the defend- 
ant: 

Frederick Mills testified : That Richard Mathias and 
Henry Irwin both told the witness that Mathias sold the 
land in dispute to Henry Irwin for $1,000, $600 of which 
was paid in cash, and small notes of $30 each given for the 
balance ; that the trade was made in the Spring of 1838, and 
the notes to be due about Christmas thereafter ; that Mathias 
then made a deed to Henry Irwin for the land ; that Henry 
Irwia went into the possession of the land, and improved it; 
the notes given by Irwin for the land, were sued to judgment 
in a Justice's Court of Stewart county, in the name of Har- 
rell Hare, in 1840, or 1841, before William Fitzpatrick, J. 
P., and the land was levied on and sold as the property of 
Henry Irwin, under the said fi. fas. and others ; and that 
long after he bought the land, Henry Irwifi called on witness 
to write a deed to his son, AYilliam Henry Irwin, who was 
then a boy about ten years old, which witness refused to do, 
believing that Henry Irwin was trying to defraud his cred- 
itors, he being, at the time, embarrassed in his pecuniary cir- 
cumstances ; witness knows nothing of any deed to William 
Henry Irwin, nor of his grand-mother, Mrs. Corbitt, having 
paid for the land for him, and from his knowledge of Mrs. 
Corbitt's circumstances, he knows she did not have the means 
to pay $1,000 for the land ; witness and William Henry 



MACON, JANUARY TERM, 1861. 45 

Roe & McDowell vs. Doe, ex dem,, Irwin. 

Irwin are at law about some negroes, and there is a cool 
feeling between them. 

William Fitzpatbicb: testified: That, by request of 
Henry Irwin and Richard Mathias, he witnessed a deed as 
Justice of the Peace, from Mathias to William Henry Irwin, 
in the year 1838, but did not see William Henry Irwin at 
the time, nor did he see any consideration paid, but under- 
stood Henry Irwin to say, that he was to pay Mathias for 
the land, $400 in cash, and $600 in notes ; that William 
Henry Irwin was a boy about six years old when the deed 
T^as made; Harrell Hare placed in my hands, for collection, 
the notes which I underatood were given in part payment for 
the land by Henry Irwin, and they were sued to judgment, 
and j7./€». were issued thereon, aud the land was sold at 
sheriff's sale under them and other ^. /cm., and bought by E. 
T. Sheppard ; that previous to the said sheriff ^s sale, Henry 
Irwin had bargained the land to Edward T. Sheppard for 
$600, and that the sheriff's sale was had merely to perfect 
the title in Sheppard, who was assured by Henry Irwin that 
such a course would secure the title to him ; that the Harrell 
Hare fi, fna. were paid out of the proceeds of the sheriff's 
sale ; that Henry Irwin told witness that he had the deed 
made to his son William Henry Irwin, to prevent the land 
from being taken away for his, the said Henry's debts, but 
that now he had concluded to pay them off, and that if he 
ooald get $600 for the land, and $600 more for a negro, that 
it would pay him out of debt ; that Henry Irwin's object 
seemed to be, to avoid the payment of his just debts from the 
time witness first knew him, until he fled from the country 
for stealing a negro ; the witness never heard of Mrs. Cor- 
bitt, the grand mother of William H. Irwin, buying the 
land for him. 

Counsel for the defendant, after accounting for the absence 
of the JL fas, recited therein, read in evidence a deed from 
Robert Rives, sheriff of Stewart county, to Edward T. Shep- 
pard for the land in dispute, reciting a regular sale thereof, 
as the property of Henry Irwin, under Ji. fas. from a Jus- 
tice's Court of Stewart county, in favor of John F. Ball, 



46 SUPREME COURT OF GEORGIA. 

Roe & McDowell V9, Doe, ex dem,, Irwin. 

William Cooper and Harrell Hare ; the sale ooeurred on the 
7th of Aprily 1840, at the price of $625^ and the deed was 
recorded on the 10th of April^ 1840. 

The defendant then closed, and the plaintiff, in rebuttal, 
proved by James L. Corbitt, that his mother, Arabella Cor- 
bitt, before she moved to Georgia from North Carolina, had 
eight or nine negroes, which she divided out amongst her 
children, except two or three which she brought with her, 
together with some money for which she sold some property; 
that she gave the negroes she brought with her to the chil- 
dren of Henry Irwin, of which plaintiff is the oldest; that in 
1840, Henry Irwin had some property around him; Mrs. 
Corbitt moved from North Carolina to this State with Henry 
Irwin and his wife. 

The jury returned a verdict in favor of the plaintiff for 
the premises in dispute, and $660 for rent. 

Counsel for the defendant then moved for a new trial on 
the following grounds, to-wit: 

1. Because the Court erred in admitting the testimony of 
John B. Robinson, and John P. Lyons, over the objection of 
defendant's counsel. 

2. Because the Court erred in admitting, in evidence, the 
copy plat and grant to Elizabeth and Harris Lyons. 

3. Because the Court erred in admitting the copy deed 
from Mathias to William H. Irwin. 

4. Because the Court erred in admitting, in evidence, the 
affidavit of Mathias. 

6. Because the Court erred in refusing, on motion of de- 
fendant's counsel, made after the plaintiff closed his testi- 
mony, to withdraw the testimony of Robinson from the con- 
sideration of the jury. 

6. Because the Court erred in refusing to grant a non-suit 
against the plaintiff, when counsel for defendant moved the 
same. 

7. Because the Court erred in charging the Jury as fol- 
lows : That if they believed that the evidence showed that 
the grantees, Elizabeth and Harris Lyons, made a deed of 
conveyance to the land in dispute, to Willis Barrington, that 



MACON, JANUARY TERM, 1861. 47 

Roe 4 McDowell vs. Doe, ex dem,^ Irwin. 

this put the title out of them, and in Barrington^ and so if 
thej believed the evidence showed that Barrington made a 
deed of oonvejanoe to Mathias^. that this put the title in 
Mathias ; and that the loss of these deeds having been ac- 
counted for^ the Court allowed the evidence of the witnesses^ 
Robinson and Lyons, to go to the jury to establish the above 
&cts, and that it was a question for them to determine from 
the evidence. 

8. Because the Court erred in charging the jury : '^ That 
if they believed from the evidence, that Arabella Corbitt 
bought the land in dispute of Mathias, and paid a part of 
the purchase money, either four hundred or six hundred dol- 
lars, in cash, and Henry Irwin gave his small notes for the 
balance, and Arabella Corbitt had the deed made to William 
H. Irwin, her grand-son, that the title vested in William H. 
Irwin, notwithstanding these notes, or some of them, were 
sued to judgment, and the land was sold under^. fas. insucd 
from these judgments, and other fi. fas. by the sheriff, and 
Edward T. Sheppard became the purchaser thereof, the 
plaintiff was entitled to recover. 

9. Because the Court erred in refusing to charge the jury 
when requested by counsel for defendant : That if they be- 
lieved, from the evidence, that Henry Irwin gave his small 
notes for four or six hundred dollars, as a part of the pur- 
chase money for the land, and that these notes, or some of 
them, were sued to judgment, and the land was sold under 
jiJoM. issued on the judgments, and other fi/faa. by the 
Sheriff, and E. T. Shepherd became the purchaser, the plain- 
tiff could not recover. The Court remarking, ^' that he had 
charged to the contrary.'' 

10. Because the jury found contrary to evidence, and the 
weight of evidence. 

11. Because the jury found contrary to law, and the charge 
of the Conrt. 

This motion for a new trial was overruled, and the plain- 

*tiff m error seeks a reversal of the judgment by bis writ in 

this 



48 SUPREME (X)URT OF GEORGIA. 

Roe & McDowell va. Doe, ex dem., Irwin. 

Johnson and SloaKi and B. S. Worbill^ for plaintiff 
in error. 

E. H. Beall for defendant in error. 

By the Cbtirt — Jenkins, J., delivering the opinion. 

The verdict of the Jury in this case being for the plaintiff, 
the defendant moved for a new trial on the several grounds 
stated above. The Court below refused the motion, and de- 
fendant excepted on each ground so taken. 

There seems to have been an unusual fatality attending the 
title papers in this cause, both parties having been compelled 
to resort to secondary evidence, and the complainant's chain 
being made out entirely by evidence of this character, several 
of the exceptions refer to the insufficiency of this evidence. 

And it is objected, first, that no sufficient foundation is laid 
for its introduction. The showing on this head consists, first, 
of the affidavit of William H. Irwin, the plaintiff's lessee, 
and secondly, of that of his grantor, Richard Mathias, who, 
at the commencement of the action, and when his affidavit 
was filed, was a party to the record, (a demise having been 
laid in his name,) but upon his death, pending the action, the 
declaration was amended by striking his demise. 

Irwin swears that he believes, that the original grant, and 
all of the title deeds from the grantees to his grantor, Richard 
Mathias, (specifically reciting them,) were once in existence, 
and were burned when the house of the said Mathias was 
destroyed by fire, and that none of said originals were then 
in his possession, power or control. Mathias swears positively 
to the existence of the same papers, and to their destruction 
by fire — adding, out of abundant caution, they were not then 
in his possession, power or control. 

1. These affidavits come fully up to the 50th Common 
Law rule of practice, except that the word *^cofUroV' is sub- 
stituted for the word " custody/^ In Ratteree V8, Nelson^ 10th 
Geo., 439, this Court decided that a party had substantially 
complied with this rule, who swore, after stating his belief of 



MACON, JANUARY TERM, 1861. 49 

Roe & McDowell vs. Doe, ex dem., Irwin. 

the loss or destraction of the original^ '' that it was not in 
his custody, power or control." 

In that case, control was substituted for possession, in this 
for custody. Therefore, strict literal compliance is not required. 
A party who swears that a paper is neither in his possession 
nor his control, certainly swears substantially that it is not in 
his custody. I cannot conceive of custody in the absence of 
both possession and control. 

2. It is objected that the affidavit of Mathias was improp- 
erly received, he not being a party at the time. Having been 
a party when the affidavit was made and filed, and having 
been stricken from the record only in consequence of his 
death, his affidavit was a paper of file in the case, and so 
comes to as ; was intended only as evidence for the Court, not 
for the jury, and we think was properly considered by the 
Court, 

But apart from this, the affidavit of Irwin was a sufficient 
foundation for the introduction of secondary evidence. 

3. But other objections were raised against the introduc- 
tion of these papers. 

The copy grant is objected to on the ground that, in one 
place the surname of the grantees is written "Loyons/* 
instead of *^ Lyons," the latter being the name of the gran- 
tees, and of the persona who conveyed. This is rather hyper- 
critical for grave consideration. The fact of the name having 
been written both ways in the grant, shows that in one 
writing or the other, there was a clerical mistake ; and the 
circumstance, that it was only once written JLoyons'is sugges- 
tive, that the mistake occurred just there. It is objected 
that the Court erred in receiving the evidence of John P. 
Lyons to prove the execution and contents of the deed from 
the owners to Barrington, and in receiving the evidence of 
Robinson to prove the execution and contents of the deed 
from Barrington to Mathias. 

4. First, it is said thatthe 50th Common Law rule of prac- 
tice does not govern the case, because plaintiff sought only to 
give in evidence the contents of the deeds by parol, not copies 
of them, and that the Common Law rule requiring a showing 

4 



50 SUPREME CX)URT OF GEORGIA 

Roe & McDowell vs. Doe, ex dem,, Irwin. 

as the foundation for such secondary evidence was not com- 
plied with. 

We think it was. The pre-existence of the deeds was 
proven^ and also their destruction by fire^ and all necessary 
diligence was shown on the part of the plaintiff. 

5. It is further objected that the evidence of these wit- 
nesses falls short of proving the contents of the deeds in 
question. They prove who was the grantor, who was the 
grantee; that the land in dispute was the subject granted; 
that there was a consideration paid; that the deeds were 
signed, sealed and delivered in the presence of two witnesses, 
Lyons and another, having attested one, and Robinson the 
other, as subscribing witnesses ; each witness states the year 
in which the deed he witnessed, was executed. Robinson states 
that the deed he witnessed, was in the usual form of war- 
ranty deeds. 

We know of no rule which determines with precision the 
degree of fulness with which the contents of a deed shall be 
stated in such cases. We think all the law requires is a 
statement of the substantial, material parts of the deed, so 
that the jury may determine who were the parties, what tlie 
subject of conveyance, whether a deed was really signed, 
sealed, delivered and attested as the law requires, and as 
nearly as may be, the time of its execution. The evidence of 
these witnesses we think fulfilled all these requirements, and 
was properly referred to the jury for their consideration. 

6. The copy deed from Mathias to Irwin, taken from the 
County records, was objected to on the ground that the 
original was not sufficiently accounted for, and the overruling 
of the objection was made a ground of motion fbr a new trial. 

We think the testimony of Henry Irwin and Mary Irwin 
fully accounts for the absence of the original, and that the 
copy was properly admitted. 

7. We detect no error in the charge of the Court, as set 
forth in the seventh ground of the motion for a new trial. 
The evidence was very fairly referred to the consideration of 
the jury, and to say that there was error of law in that 
charge, would be to hold, that when the destruction of an 



MACON, JANUARY TERM, 1861. 51 

Roe & McDowell vs. Doe, ex (£em., Irwin. 

original deed for land had been satisfactorily proven, parol 
proof of its contents bj^a subscribing witness, is insufficient 
evidence of a transfer of title. 

This we cannot hold. It is not evidence of a conveyance 
of land by parol. It is parol evidence of a conveyance by 
deed, the loss or destruction of which has been proven as a 
preliminary to the introduction of secondary evidence, being 
the best of which the nature of the case admits. 

It is, however, evidence of a conveyance by deed, and if it 
satisfied the minds of jurors, that such conveyance was made, 
it is saflScient. This is the effect of the Courtis charge. 

8. Nor cam we perceive error in the charge set forth in the 
8th ground. It is in substance this : If A. advance to B. 
8400 to be paid as a part consideration of the purchase of a 
tract of land for her grandson C, a child of twelve years, on 
condition that the title be made to that child, and B. give 
his promi^ory note for $600, as the remainder of the consid- 
eration, and the title be made by the vendor to the child, who 
is the son of B-, it will vest the title in C, and he will hold 
the land against a subsequent purchaser at sheriff's sale 
under a judgment obtained upon said promissory note of B. 

The purchaser at sheriff's sale can be in no better condition 
than the vendor of the land, and payee of the note, upon 
which the judgment was founded. He could not subject the 
land to the payment of the note in virtue of the vendor's lien, 
because, by conveying to C, he undertook and elected to rely 
upon the credit of B., knowing that the whole consideration 
did not move from B. This judgment had no higher lien 
upon the property than any other against B. The condition 
of the purchaser at sheriff's sale, therefore, is that of a man 
who buys the property of C, an infant, when sold under ex- 
ecution to satisfy the debt of B. The charge of the Court 
was, that in such a case, C.'s title is better than that of the 
purchaser at sheriff's sale, and it was right. 

9. The charge refused by the Court, as stated in the 9th 
ground, was jast the opposite of that just considered. If 
the Court was right in giving the one, as we have held, he 
was right in refusing the other. 



52 SUPREME CX)URT OF GEORGIA. 

Roe & McDowell r«. Doe, ex dem.^ Irwin. 

10. The grounds taken that the verdict was contrary to 
law and to the charge of the Courts and to the evidencei re- 
main to be considered. The Statute of Limitations pleaded 
by the defendant'^could not bar plaintiff's recovery under the 
evidence^ because he was under the disability of infancy when 
the cause of action accrued^ and brought biscuit within seven 
years afler the removal of the disability. We are unable 
to perceive that the verdict was contrary in any respect^ 
either to the law or to the charge of the Court. 

The case really turns upon the evidence^ and the only re- 
maining question is, whether the verdict was contrary to the 
evidence, or strongly and decidedly against the weight of 
evidence. The defendant sought to vitiate the plaintiff's 
title by fraud; not committed by plaintiff, (who was a child 
of twelve, years when the deed to him was executed,) but 
fraud committed by his father, Henry Irwin, with a view to 
circumvent creditors, to whose rights he insists the purchaser 
at sheriff's sale and his assigns are subrogated. There was 
abundant proof on the part of the plaintiff of the bona fides 
of the transaction, if the jury believed his witnesses. There 
was also proof enough made by one witness on the part of 
the defendant, taken per se, to establish fraud on the part of 
Henry Irwin, (plaintiff's father,) who was the acting party 
in the purchase. But there was a conflict in the testimony 
adduced by the parties, and there is, moreover, some discrep- 
ancy, on a material point, between two of the defendant's 
witnesses. 

There was no impeachment of any witness, for lack of 
character for truthfulness. It is a case of doubt, eminently 
one to be referred to the sound discretion of a jury. We 
cannot say, either that their verdict is without evidence to 
si^port it, or that it is strongly and decidedly against the 
weight of evidence. It ought not to be disturbed. We, 
therefore, affirm the judgment of the Court below, overrul- 
ing the motion for a new trial. 

Judgment affirmed. 



MACON, JANUARY TERM, 1861. 58 

Barton ei oZ., vs. Black. 

Burton et cU, vs. BiiACE. 

1. A partj who is not only present and acquiescing in what is being done, 
bat for a valnable consideration procures another to convey away his 
property, will be bonnd by the conveyance, as if it were his own act. 

2. The allegations in a bill of interpleader, that two persons are claiming 
of the complainant the same property ; that he has no interest in it ; 
knows not to whom he oaght, of right, to deliver it ; is colluding with 
neither, and fears he may suffer injury from their conflicting claims ; 
and that they are molesting him with separate suits, are sufficient to 
sostain the bill, and authorize an injunction and order to interplead. 

S. Such a bill wonld be made still stronger by a showing that one of the 
conflicting claims is legal, and the other equitable. 

In Equity, in Schley Superior Court. Decision on De- 
murrer, made by Judge Worbill, at Chambers, on the 18th 
of December, I860, 

The question presented by the records, in these two cases, 
being the same, the cases were heard together, and rest upon 
the following state of facte : 

On the 18th day of July, 1846, Mrs. Eliza Smith executed 
Her last will and testament; by the first three it^ms of which 
she gave directions as to her burial, and disposed of three 
negroes By specific bequeste. 

The fourth and fifth items of the will are in the following 
words, that is to say : 

" All the balance of my property, of every description, 
lands, n^roes, stock, utensils, furniture, bedding, and every 
thing I possess, I give, bequeath and devise to my son, Ben- 
jamin Burton, after the payment of my just debte ; for the 
purpose of which payment of my debte, I give unto him 
notes now held by me. 5th, Should my son, Benjamin Bur- 
ton, die without children, it is my will, and I do hereby (in 
the event of the death of my son Benjamin, without chil- 
dren,) give, bequeath and devise all of my property, of every 
description, which shall be found remaining at the death of 
®y son Benjamin, together with all the increase that may 
arise therefrom, to my son, Robert Burton, and his heirs for- 
ever." 



54 SUPREME COURT OP GEORGIA. 

Burton et oL, vm. Black. 

Afterwards, the testator died, leaving this will in full 
force, and the same was duly proven and recorded, according 
to law. 

Bj virtue of said will, the said Benjamin Burton became 
possessed of the property bequeathed to him as aforesaid, of 
which, with the increase thereof, there are now living the 
following-named negroes, to-wit: Csesar, Nancy, Phiny, 
Charles, Mercy, Betsy, Katy, Marshall, Victoria, Cora, Ben, 
Billy, Emory, Sarah, Lize, Allen, Patty, Stephen, Christian, 
Amelia, Milton, Elbert, Nancy, Rhiner and Jordan. 

The said Benjamin Burton intermarried with one Virginia 
Pinckard, and, by virtue of a deed of marriage-settlement, 
made between them, William A. Black was appointed trustee 
of said property, and of other property of the said Benjamin 
Burton. 

In process of time Burton and his wife became dissatisfied, 
and desired the said Black to be removed from bis trustee- 
ship, and another trustee appointed in his stead, in order that 
the said Burton and his said wife might remove with said 
property to the State of Florida, which removal they then 
had in contemplation. 

Robert Burton, hearing of the desire to change the trus- 
tee, and of the contemplated removal of the said Benjamin 
and his wife, with said property, out of the State, and being 
much opposed thereto, on account of the contingent interest 
which he had in said property, proposed to the said William 
A. Black the terms of an agreement and contract, which was 
evidenced by Black executing and delivering, to the said 
Robert Burton, his bond, in writing, for the sum of $25,000, 
conditioned to be void if the said Black should resist and 
oppose the change of trustee aforesaid, and continue to hold 
on to said trust, and manage said property, and have the 
same forthcoming upon the death of the said Benjamin, 
without children, to be delivered to the said Robert; and by 
the said Robert Burton, also, on his part, executing and de- 
livering to the said William A. Black his bond, in the like 
sum of $25,000, conditioned to be void, if the said Robert 
should divide the said property equally with the said Wil- 



MACON, JANUARY TERM, 1861. , 55 

Bnrton et al., vs. Black. 

liam A. Blacky upon the death of the said Benjamin without 
children. 

In compliance with the terms of said agreement, the said 
Black did resist and oppose the said change of trustee, and 
did hold on to the trust, and did continue to manage the 
property, in accordance with said agreement. 

Sometime thereafter, Benjamin Burton became extrava- 
gant, and ran largely and unnecessarily in debt, and the said 
Robert Burton again sought an interview with Black, and it 
was agreed between them that, in order to control Benjamin 
Burton in his extravagance, and in order to preserve the 
property from waste, and in consideration that the bonds exe- 
cuted and interchangeably delivered by Black and Bobert 
Burton, should be canceled, that Benjamin Burton should be 
induced to confide the property more thoroughly to Black, 
and for this purpose, and to accomplish these objects, (all 
three of the parties being present, and participating in the 
same,) Benjamin Burton, on the 22d day of February, 1856, 
made a deed of conveyance to the said William A. Black, of 
^hich the following is a copy, that is to say : 

" Georgia, Marion County : 

''This indenture, made and entered into this 22d day of 
February, 1856, between Benjamin Burton, and William A. 
Black, both of said county, witnesseth : that the said Benja- 
min Burton, for and in consideration of repeated and con- 
tinued acts of labor, car^ and diligence, done, performed, 
and bestowed by the said William A. Black, and for the fur- 
ther consideration of securing the care, vigilance, skill and 
diligence of said William A. Black during my natural life, 
In and about my business and property, and to prevent loss 
or damage by waste, mismanagement, imprudence, or want 
of skill, on the part of unfaithful agents, hath granted, bar- 
gained, aliened, conveyed and sold, and by these presents 
grant, bargain, alien, convey, and sell unto the said William 
A. Black, his heirs and assigns forever, all the negroes and 
their increase, that were bequeathed to me by my mother, 
^. Eliza Smith, late of Talbot county, deceased, the same 

V 



56 SUPREME COURT OF GEORGIA. 

Barton et al., vs. Black. 

being now in the possession of the said William A. Black, 
names as follows : [here followed the names of the negroeii] to 
have and to hold said negroes, and their issue, and increase 
forever, upon the special trusts and confidence following, 
that is to say : to sell said negroes for cash, or on reasonable 
credit, as soon as a fair market price can be obtained, at pub- 
lic or private sale, or hire out the negroes from year to 
year, as he may deem best, and pay and apply the pro- 
ceeds of said sale (if sold) as follows — that is, in State bonds 
of the State, or some good marketable bonds, or in some s^fe 
dividend-paying stock, and pay the interest, in com, or hire, 
as the case may be, annually or semi-annually, as the case 
may be, to the said Benjamin Burton, during his natural 
life, and at, and from immediately after his death, this trust 
to cease, and the corpus of said property, if unsold, or the 
stocks, bonds, or other property, in which the proceeds of the 
sale may be invested, to be disposed of as folloMrs, to-wit : 
one full share or half, to the children of William A. Black 
then living, and to the lineal descendants of such child or 
children, in case any one of them be dead leaving children — 
such child or children to take in the place of the deceased 
parent — such part or share as may fall to the daughters of 
William A. Black respectively, to their sole and separate use 
respectively, during their respective natural lives, and then 
to their children respectively. The other one-half or share 
to my brother, Bobert Burton and his children, his and their 
heirs and assigns forever. 

"In witness whereof, the said Benjamin Burton hathher^ 
unto set his hand and seal, the day and date first aforesaid.'^ 

BENJAMIN BURTON. [u s.] 

Signed sealed and delivered in the presence of 
L. C. Babett. 
W. J, May, Notary Public. 

This deed was duly executed by the said Benjamin Bur- 
ton, and was handed to Robert Burton to be recorded, and 
the bonds of the said Black, and the said Robert Burton 
herein before mentioned^ were then mutually re-delivered. 



MACON, JANUAEY TERM, 1861. 57 

Barton et aL, V8, Black. 

Under this deed, William A. Black continued to hold pos 
session of the property, and managed the same under the 
trusts, and for the purposes mentioned in the deed, until the 
death of Benjamin Burton, on the 26th of January, 1859. 

Immediately aft^r the death of Benjamin Burton, William 
A. Black notified Robert Burton, in his own behalf, and in 
behalf of his children, to- wit: Homer V. Burton, Clara Bur- 
ton, and Ella ^Burton, who were then minors, and also noti- 
fied the children of William A. Black, to-wit: William T. 
Bl|u:k, Eliza C. Black, Matilda J. Black, Nannie J. Black, 
Oliver D. Black, Susan A. Black, James M. Black, Lucy Y. 
Black and Bell B. Black, (the six last named being minors,) 
all of whom were living at the time the deed was made by 
Benjamin Burton, and are now in life, that his said trust had 
ceased, and that he was willing and ready to turn over, and 
deliver said property to them, and execute such conveyances 
as were necessary to carry out the provisions of said deed, 
and to give it full effect. 

To avoid future litigation, and under professional advice. 
Black executed a deed of conveyance for said property to 
his own children, and to Robert Burton and his children, in 
exact accordance with the terms and trusts of the deed from 
Benjamin Burton, although he believed that the trust ceased 
at the death of Benjamin Burton. 

Black hired out the negroes during the years 1859 and 
1860, for the aggregate gross sum of $1,551 67. 

Robert Burton, repudiating, so &r as he was concerned, 
the stipulations of the deed from Benjamin Burton, and rest- 
ing his claim on the said will of his mother, Mrs. Eliza 
' Smith, (said Benjamin Burton, having died without children,) 
conunenced his action of trover in Schley Superior Court, 
against William A. Black, for the recovery of all the negroes, 
and their hire, since the death of Benjamin Burton. 

The children of William A. Black, also commenced a pro- 
ceeding in equity, by bill in Schley Superior Court, against 
the said William A. Black, and Robert Burton, and the said 
children of Robert Burton, praying a division of the negroes 
ftnd their hire accruing subsequent to the death of Benjamin 



68 SUPREME COURT OF GEORGIA. 

Barton et al,, vs. Black. 

Burton, between them and Robert Burton, in accordance 
with the terms and stipulations of the deed from Benjamin 
Burton to William A. Black, hereinbefore set forth. 

William A. Black answered the bill, in which the forgo- 
ing facts are alleged and admitted by him ; and Bobert Bar- 
ton and his children, by a guardian ad litem appointed hj 
the Chancellor, demurred, to the bill for want of equity. 

Under these circumstances, and whilst said action of tro- 
ver and said bill in equity were both pending and unde- 
termined, William A. Black filed his bill in equity, in Schley 
Superior Court, against the said complainants in the afore- 
said bill, and against Bobert Burton, the plaintiff in said 
action of trover, and against the said children of Robert 
Burton, in which he alleges the facts herein before stated, and 
also that he has the negroes and their hire in his possession ; 
that he sets up no claim to the same ; that he is ready to 
deliver the said negroes and pay the hire to whomsoever the 
Court may, by decree, adjudge them to belong; that he has 
not colluded \vith either of the parties, but files this bill for 
his own protection and security alone. 

The bill prays that the parties may be compelled to inter- 
plead, and litigate their rights in .the premises; that a Re- 
ceiver may be appointed to take charge of the property 
pending the litigation ; that the action of trover, and the 
suit in equity may both be enjoined until the hearing of this 
bill, and that the said William A. Black may have such 
other relief as the circumstances of the case justify and 
demand. 

The injunction was granted as prayed for in the bill, aflcr 
argument had thereon, on the 18th of December, 1860, and 
on the same day, after like argument had, the demurrer to 
the bill in favor of the children of Black was overruled. 

These decisions, granting the injunction in the one case, 
and overruling the demurrer in the other, are the errors com- 
plained of in the records. 

L. B. Smith, for the plaintifis in error. 

B. Hill, for the defendants in error. 



MACON, JANUARY TERM, 1861. 69 

Burton et cd., vs. Black. 

Bi/ the Chart, — ^Jbnkins, J., delivering the opinion. 

Two qnestions arise under this bill of exceptions. 
Ist. Is Benjamin Burton's deed, of the 22d February, 
1856y under which the claim of William T. Black et aL 
(set forth in their bill,) arises, binding upon Robert Burton ? 
2d. If it be so, is this a case for interpleader ? If the first 
question be decided affirmatively, the judgment of the Court 
below overruling the demurrer to the bill of Wm. T. Black 
d a/, vs. Wm. A. Black et cU, must be affirmed. It will 
then become necessary to examine the second question ; if 
that be also determined affirmatively, the judgment of the 
Court enjoining the action of trover by Burton vs. Wm. A.- 
Black, and the bill of Wm. T. Black et cU, must likewise be 
affirmed. But if the first question be settled negatively, each 
of said judgments must be reversed. 

Counsel for plaintifis in error insist that Robert Burton is 
not bound by the deed of Benjamin Burton, because the latter 
had only a life estate in the property, and could not convey 
the remainder, which, by the will of Mrs. Eliza Smith, (the 
mother of both, from whom Benjamin derived title,) rested 
in Robert; and that all that Robert had said or done, to 
divest himself of this remainder or any portion of it, rested in 
parol, which was insufficient to execute an estate in remainder. 
He cites Kirkpatrick vs. Davidson, 2 Geo. R., 301-2, and 
Maxwell vs. Harrison, 8th Geo. R., 61. 

These cases do affirm the rule, that a remainder in chattels 
cannot be created by parol. In those cases, the remainders 
attempted to be set up, and dballowed by this Court, rested 
entirely in parol. 

The case at bar depends upon a very different principle. 
There is no attempt made to set up, in Wm. T. Black and 
others, a parol gift in remainder. They claim under the 
deed of Benjamin Burton, above mentioned. The question 
for the plaintiff in error to meet, is not whether a parol gift 
of slaves in remainder after a life in being, made by him, is 
binding upon him. It is whether or not, under the facts of 
this case, he is bound by the deed of Benjamin Burton. The 



60 SUPREME COURT OF GEORGIA. 

Burton et al.^ vs. Black. 

facts are that Bobert Burton had, in the slaves in dispute, a 
contingent remainder, depending upon the death of Benja- 
min Burton, without children surviving him. Benjamin, 
upon his marriage, settled his interest in this property upon 
his wife, making Wm. A. Black the trustee. After this, and 
whilst still childless, he desired to have the trustee changed, 
with a view of enabling him to remove the property from the 
State of Georgia ; which purpose we may presume the then 
trustee opposed. Before anything definite was done, the 
plaintiff in error, alarmed by the peril in which his contin- 
gent interest would be placed, by such change of trustee, and 
removal of the property, opened a negotiation with Black, 
the trustee, the result of which was that Black bound himself 
to Robert Burton^ to resist any change of trustee attempted, 
and to prevent, if possible, the removal of the property, and 
in consideration thereof, Robert Burton bound himself to 
Black, to convey to him. Black, one-half of the property in 
question, which might thereafter come to him, upon the 
death of Benjamin Burton. This agreement did not rest in 
parol. Each party to it, executed and delivered to the other, 
a bond in the sum of $25,000, conditioned to be void, upon 
the performance by the obligor of his part of the agreement, 
as above stated. 

Here, then, by an instrument in writing, under seal, with a 
sufficient consideration, the interest of Robert Burton in this 
property was materially changed. Black acquired a contin- 
gent, equitable interest, to the extent of one-half. Black 
complied, on his part, with the agreement. He retained the 
trust and prevented the property from being removed. 

Still, however, the bad management of Benjamin Burton, 
his improvidence, and extravagance, and his great liability 
to be imposed upon by sharpers, rendered Robert Burton 
uneasy — ^apprehensive as to the security of his contingent 
interest. Again he approached Black, the trustee, and con- 
ferred with him as to the best mode of securing their pros- 
pective interest in the property, as well as for the purpose 
of making it more available for the support and maintenance 
of Benjamin Burton. The result of this second negotiation, 



MACON, JANUARY TERM, 1861. 61 

Barton et a/., vs. Black. 

also instituted by Bobert Burton, was an agreement, that 
with the consent of Benjamin Burton, (if it could be procured) 
he, BeDJacnin Burton, should execute just such a deed as was 
sabsequentlj executed, that Black should, in pursuance of it, 
take the actual possession, and the entire control of the 
property, preserve it from waste, and make it productive ; 
and the bonds theretofore executed and delivered by Black 
and Robert Burton, the one to the other, should be re-deliv- 
ered and canceled. 

Accordingly upon their joint suggestion afnd advice, and 
whilst they both were present, and giving full assent to all 
that was done, Benjamin Burton executed the deed of 24th 
February, 1856, and it was then delivered to, and received 
by Robert Burton for the purpose of being recorded. The 
bonds previously interchanged by and between Robert 
Barton and 'Black, were at the same time, severally surren- 
dered, each to the obligor therein. Black faithfully performed 
his trust, taking care of, and discreetly managing the prop- 
erty, nntil the death of Benjamin Burton, wb«n this litigation 
ensued. 

It would inadequately express the relation which the plain- 
tiff in error bore to this transaction, to say that he stood by 
and acquiesced in Benjamin Burton's disposition of his con- 
tingent interest in remainder. He did more, he fii'st con- 
ceived the act, then procured the consent to it of Black, whom 
he had previously made a party in interest; then, with the 
assistance of Black, he obtained the consent of Benjamin 
Barton, to carry into effect his wiU^ touching the remainder 
in the property, and was present, participating in, (we may 
safely add) directing what was done, and finally received the 
deed for the avowed purpose of having it recorded. Again, 
he took an interest under the deed — still again, he received a 
valuable consideration from Black, viz : his obligation, upon 
a fature contingency to convey one-half of this property to 
Black, was canceled and surrendered. He was, in this whole 
affair, the prime-mover, the controlling spirit. He willed, 
and he caused Benjamin Burton to execute his will. It was 
ii^ fact, Robert Burton signing and sealing, with the hand of 



62 SUPREME COURT OF GEORGIA. 

Burton et al., vs. Black. 

Benjamin Burton. Having secured^ by this arrangement^ 
the cancellation, and surrender of his bond to Black, which 
was a valid and binding executory contract, shall he be per- 
mitted now to repudiate the settlement, and recover the whole 
of this property under the will of his mother ? 

I have said that this case was governed by a different rule, 
than that under which counsel for plaintiff seeks to bring it. 
It is this, that a party who is not only present and acquiesc- 
ing in the act, but for a valuable consideration, procuring 
another to convey his property, will be bound by the con- 
veyance, as if it were his own act. 

The cases of White et al» vs. Dinkins, 19 Geo. R., 286, 
and Wyche et aJ. vs. Green et al., 26 Geo. R., 416, neither 
of which has so strong a foundation, in fact fully sustain this 
ruling. This disposes of the first question. 

As to the second question, whether in the bill of Wm. A. 
•Black vs. Robert Burton, Wm. T. Black et al., a proper case 
for interpleader has been made, we think there is no difficulty. 

The general llbctrine is, that interpleader lies, " where two 
or more persons claim the same thing, under different titles, 
or in separate interests, from another person, who, not claim- 
ing any title or interest therein himself, and not knowing to 
which of the claimants he ought of right to render the duty 
claimed, or to deliver the property claimed, is either molested 
by an action or actions brought against him, or fears he may 
suffer injury, from the conflicting claims of the parties against 
him. He therefore applies to a Court of Equity to protect 
him, not only from being compelled to pay or deliver the 
thing claimed, to both the claimants, but also from the vex- 
ation attending upon the suits, which are, or possibly may 
be instituted against him." 2d Story's Equity Jur. sec. 806. 

The complainant in this case, claims no interest in the 
property. He avers, and verifies the averment, that he is in 
collusion with neither party claiming. Those parties claim 
hy different titles — he knows not to whom he ought todeliver 
it — he fears that he may suffer injury from their conflicting 
titles — bpth parties are actually molesting him with separate 



MlCON, JANUARY TERM, 1861. 63 

McDoagald, adm'r, ti al.j vs, Maddox and Wife. 

suits, from the vexation and expense of which he seeks to be 
delivered. 

Again, one of the titles is legal and the other equitable, 
which are now pressed against him, which is a suflScient foun- 
dation for the jurisdiction. 2d Story's Equity Jur. sec. 808. 

Such is precisely the case here. One of the parties is pur- 
suing him at law under a title derived by the will of a 
stranger. The other is claiming the property by bill in equity, 
insisting that he holds the property as trustee, and that by 
one of the provisions of the trust deed, it is his duty to deliver 
the property, or a portion of it, to them. We entertain no 
doubt that it is a case for interpleader, and we therefore affirm 
the judgment of the Court below in each case. 

Judgment affirmed. 



McDouQALD, AdraV, et cU. vs. Maddox and Wife. 

1. When a gaardian is charged by his former ward with being guilty of 
doiiutavU, and he has giren different bonds, with additional or differ- 
ent securities, in the course of his guardianship ; a bill may be filed 
against the gaardian and the different sets of securities., praying a dis- 
covery of the amonnt of the devastavit and the time when it occurred, 
in order to charge each set of securities according to their respective 
liabilities on their bonds — Provided, the bill charges— the total or par- 
tial insolvency of the principal, or a well grounded apprehension that 
the gaardian will be unable to satisfy the recovery which may be ob- 
tained against him. 

2. To make the dismissal of a former bill a bar to the bringing of a 
second, the material allegations in both must be the same. 

In Equity, in Muscogee Superior Court. Decided by 
Jadge Worruj:., at the May Term, 18C0. 

This case was continued from the last to the present term 
of this Court, and the questions presented in the record for 
adjudication arise out of the following state of facts : 

William Moughon died in the county of Jones, leaving an 
«tate worth fifty thousand dollars, one-half of which was 



64 SUPREME COURT OF GEORGIA. 

McDoQgald, adm'r, et al,j vs. Maddox and Wife. 

bequeathed to his daughter, Sarah E. Moughon. On the Ist 
of November^ ISSO, John Mitchell qualified as Moughon's 
executor, and took possession of his estate. In the year 1835, 
Mitchell obtained letters of guardianship of the person and 
property of Sarah E. Moughon, and continued as such ex- 
ecutor and guardian, without making any settlement or re- 
turns until his death in Harris county, in the year 1841. 
The said Mitchell made a will, and appointed Alexander 
McDougald his executor, who, upon the death of his testator, 
took possession of his estate, worth $100,000, or other large 
sum, and thereby became liable to account to the minor, 
Sarah E. Moughon. In 1841, Alexander 'McDougald be- 
came the guardian of Sarah E. Moughon, giving bond as 
such, with Daniel McDougald, Elizabeth Mitchell, and Wil- 
liam C. Osborne as his sureties. In 1842, Osborne com- 
plained to the Inferior Court of Harris county, sitting for 
ordinary purposes, that Alexander McDougald was misman- 
aging the estate of his ward, and asked to be discharged, 
and the proceeding resulted in adding to the original bond 
the names of George H. Bryson, James C. Huey, Miles 
Moore, Richard W. Armer, and Spencer Reynolds as sure- 
ties, Osborne's name remaining on the bond as before. In 
the year 1847, Alexander McDougald removed his doings, 
returns and proceedings from Harris to Muscogee county, 
and gave a new bond, with Daniel McDougald and Duncan 
McDougald as sureties. On the 9th of October, 1850, the 
said Sarah E. Moughon intermarried with William A. T. 
Maddox, who called on Alexander McDougald for an account- 
ing and settlement of his trust as guardian of the said Sarah 
E. McDougald then delivered to Maddox forty-nine ne- 
groes, and paid him $986 18, for which Maddox and wife 
receipted as a part of the estate of the said Sarah E., in the 
hands of the said guardian. Alexander McDougald, failing 
to account for the hire and profits of the estate of the said 
Sarah E., actions were commenced, to the May Term, 1852, 
of Muscogee, for the use of said Maddox and wife, against 
the said Alexander McDougald, and his said sureties reaped- 
ively, on the guardian's bonds aforesaid. 



MACON, JANUARY TERM, 1861. 65 

McDoagald, adm'r, et oLjVs. Maddoz and Wife. 

To these actions, various defences were set up by the sure- 
ties, involving the question of Osbom's liability after the 
names of additional sureties were placed to the bond in Har- 
ris county ; and the liability of all the sureties to the bond 
in Harris, afler the bond in Muscogee county was given, and 
also involving the question as to the relative and propor- 
tional liability of said sureties, if liable at all. Huey, Moore 
and Spenoer were not sued in the action on the bond, because 
tlie first two had removed beyond the jurisdictional limits of 
the State, and the' last had died insolvent, and his estate was 
unrepresented. 

Daniel McDongald died before the commencement of the 
actioi», and Ann E. McDougald was appointed administra- 
trix on his estate. 

Pending the suits on the bonds, the said* Maddox and ^ife 
filed their bill in equity, against the guardian, and all the sure- 
ties, (except the three before stated — two as being out of the 
State, and the other dead, without a representative,) in which 
they alleged the forgoing facts, and also, that the estate of the 
said Sarah E., produced, or should have produced, large pro- 
fits in the hand§ of Mitchell, for which his estate in the hands 
of his executor was chargeable, and also that that the estate of 
the said Sarah E. produced, or should have produced, large 
profits, amounting to $3,500, or $3,000 per annum, in the 
haodd of the said Alexander McDougald : that without a 
(liscoyery from the defendants, the complainants cannot al- 
lege and prove at what time the several breaches of the guar- 
dian's bond occurred, so as to distribute and apportion the 
liability therefor amongst the several sureties, upon the 
respective bonds given as aforesaid; and that they cannot 
prove the annual profits of the estate of the said Sarah E., 
without a discovery from the defendants. 

The bill prayed that the common law actions might be en- 
joined until the hearing of the bill, and for a decree in the 
complainants' favor for the amount due them, against the 
defendants, according to their respective liabilities. 

The defendants met this bill with a demurrer on three 
groands: 1. For want of Equity. 2. Because of thepen- 

5 



66 SUPREME COURT OF GEORGIA 

McDougald, adm*r, et al., vs. Maddox and Wife. 

dency of the ootnmon law actions. 3. For multifariousness. 

The Court overruled the demurrer^ and the defendants ex- 
cepted to the decision, and carried the same by bill of excep- 
tions and writ of error, to the Supreme Court, by the 
judgmentr of which, the judgment of the Court below was 
reversed, the said Supreme Court deciding: 1. ''That the 
bill filed against McDougald, and the several sets of sureties, 
was not objectionable on the score of multifariousness." 
2. ''That actions having been instituted at law upon each of 
the bonds, the remedy was ample; and that a bill filed 
against the principal, and all the different sureties, could not 
be entertained, there being no allegation of the insolvency of 
the principal." 3. "That where several suits are pending 
at law, if discovery is needed, and a resort is had to Chan- 
cery to obtain it, a separate bill must be filed in each case; 
and. the whole cannot be consolidated for that purpose." 

At the December Term, 1854, of Muscogee Superior Court, 
adjourned to the 12th of June, 1855, by an order regularly 
taken, the judgment of the Supreme Court was made the 
judgment of said Superior Court; and an order taken that 
the demurrer to said bill be sustained, and said bill be dis- 
missed, and that defendants have judgment against the com- 
plainants for costs, to be taxed by the Clerk. 

On the 22d of January, 1856, William A. T. Maddox, 
and his wife, Sarah E. Maddox, formerly Sarah E. Moughon, 
filed a second bill in equity, in Muscogee Superior Court, 
against Alexander McDougald, William C. Osborn, George 
H. Bryant^ Richard W. Amer, Elizabeth Mitchell, Duncan 
McDougald and Robert E. Dixon, as the Administrator of 
Daniel McDougald, deceased, in which bill, the charges and 
allegation's contained in the first bill, which was dismissed, 
were fully and substantially made and reiterated, with the 
i^dditional charge and allegation (not contained in the dis- 
missed bill) in the following words, to-wit: "Complainants 
are informed, and believe, and so expressly charge, that the 
said Alexander McDougald, the principal in each of said 
bonds, is insolvent, and unable to pay the recovery that may 
be had in said cases on said bonds ; and that whatever reoov- 



MACON, JANUARY TERM, 1861. 67 

r ^ 

McDoagsld, adm'r, et oZ., vs. Maddox and Wife. 

cries may be had thereon, will have to be paid by the sure- 
ties on said bonds according to their respective liabilities 
when the same is ascertained and apportioned, as sought in 
aod by this, their bill of complaint. And they further charge, 
that if the said Alexander McDougald, is not totally insol- 
vent, his means are limited in amount, greatly below the 
amoant due to the complainants on said bonds, .and that 
much the larger portion, if not all of said recoveries will 
have to be paid by said sureties, on the said judgments, when 
rendered/* 

The prayer of the last bill w&s substantially the same as 
that of the first. * 

Pending the bill, Alexander McDougald died, and Frances 
Lw McDongald, administratrix on his estate, was made a 
party defendant in his stead. 

This bill was met by the defendants, with a plea, setting 
forth the first bill ; all the proceedings had on the same ; the 
demarrer filed thereto ; the judgment of the Court below 
thereon; the reversal of that judgment by the Supreme 
Court; and the final judgment of the Superior Court dis- 
missing the bill, and awarding judgment for costs against 
the complainants, all of which the defendants insist, consti- 
tnte a bar to any recovery in and by the second bill. 

Also, by a demurrer to the said bill. 

After argument had, the presiding Judge passed an order 
overruling both the plea and demurrer, and requiring the 
defendants to answer the bill. 

This decision is the error alleged in the record in this case. 

Johnson and Sloan for plaintiffs in error. 
Holt and Dougherty for defendants in error. 



68 SUPREME COURT OF GEORGIA. 



McDoagald, admV, et aL, vs. Maddox and Wife. 

By die Court, — Lumpkin, J., delivering the opiuion. 

Ill Alexander vs. Mercer and others, (7 Ga. R., 549) this 
Court held that where an administrator, upon the discharge 
of his first sureties, gave a new bond, and subsequently 
became insolventj^ equity would entertain jurisdiction of a 
bill, filed against the administrator and both sets of sureties, 
praying a discovery of the amount of the devastavit and the 
time when it occurred, in order, to charge each set of sureties • 
according to their respective liabilities on their bonds. 

The case now before us, was brought before ; this Court at 
Coluiftbus, January term, 1855, upon the following brief 
summary of facts: 

Wm. Moughon died testate, appointing John, Mitchell his 
executor — who qualifiecl and took possession of his estate; 
who was aflerwards appointed guardian of Sarali, the infant 
daughter of the testator. Mitchell, after managing the estate 
for many years, died testate, without dividing, the estate, 
constituting Alexander McDougald and others his executors; 
McDougald qualifiejl and took exclusive possession and con- 
trol of the estate of Mitchell, amounting to $100,000. Mc- 
Dougald was also appointed guardian of. the minor; and 
owing to the transfer of the guardianship from Harris to 
Muscogee county, and other causes charged in the Mil, sev- 
eral bonds, with different sets of securities, were given. . Ac- 
tions were commenced at law on the several bonds ; and 
pending these suits, Maddox and wife, (formerly Sarah 
Moughon,) filed their bill against the principal and all of 
the sureties on both bonds, alleging the foregoing facts;- and 
further, that it was impossible to prove ot law at what time 
the guardian committed the breaches complained of, in order 
to distribute the liability properly among the several sets of 
sureties upon their respective bonds. That the several sets 
of securities denied that the breaches occurred during the 
time of their liability ; and cast upon the complainants the 
onus of proving the same — which the complainants charged 
it was impossible for them to do. The bill prayed for dis- 
covery and relief. 



MACON JANUARY TERM 1861. 69 

McDougaldi adm'r, et al,^ vs. Maddox and Wife. 



To that bill, a demurrer was filed, Ist, for want of equity, 
2Dd, on account of the pending of the common law actions, 
and 3d, for multifariousness. 

The Court held, 1st. That the bill was not objectionable 
on the ground of multifariousness. 2d. That actions having 
been instituted at law upon each of the bonds, the remedy 
was ample ; and that a bill filed against the principal and all 
the different sureties could not be entertained, there being no 
aUegdUon of the insolvency of the principal; and 3d, that 
where several suits are pending at law, if discovery is needed, 
and a resort is had to Chancery to obtain it, a separate bill 
must be filed in each case ; and the whole cannot be oonsoli- 
dated for that purpose. 

Our conclusion in the case, consequently, was that the 
demurrer to the bill should have beeen allowed. (McDou- 
gald et clL v8, Maddox and wife, 17 Ga. B., 52.) We re- 
affirm that -decision. If the principal be solvent, you never 
can reach the sureties, of course, so as to lay a foundation 
for a bill in equity, to settle their conflicting interests ; aa 
Courts do not sit to adjudicate abstract questions but practi- 
cal issues. 

The case went back to the Circuit Court, and instead of 
being amended by the complainants, as it was their right to 
have done under the Act of 1853-4, which allows a com- 
plainant in equity to amend his bill at any stage of the pro- 
oeeding-^-and this was a stage at which it was amendable, as 
ruled by the Court in Walker vs. Cook, the first bill was suf- 
fered to be dismissed. 17 Ga. E., 126. 

The complainants have filed a second bill, substantially, if 
not literally the same as the first, with this additional charge 
not contained in the dismissed bill — '^ Complainants are 
informed and believe, and so expressly charge that the said 
Alexander McDougald, the principal in each of said bonds, 
is insolvent, and unable to pay the recovery that may be had 
in said cases on said bonds ; and that whatever recovery may 
be had thereon, will have to be paid by the sureties on said 
bonds, according to their respective liabilities, when the same 
is ascertained and apportioned as sought in and by this their 



70 SUPREME COURT OF GEORGIA. 

HcDoagald, adin^r, ei al., t«. Maddoz and Wife. 

bill of complaint. And they further charge that if the said 
Alexander McDougald is not wholly insolvent^ his means are 
limited in amount greatly below the amount due the com- 
plainants on said bonds, and that much the larger portion, if 
not all, of said recovery will have to be paid by said sureties 
on the said judgments when recovered/' 

To this bill, thus amended, the defendants demurred for 
want of equity ; and also plead the first bill and the judg- 
ment of the Court thereon in bar to any recovery in the 
second bill. The presiding Judge overruled both the plea 
and demurrer; and the defendants excepted, and now assign 
the same as error. 

Adhering, as wc do, to the decision in Mercer's case, in 7th 
(Georgia, we hold with the Circuit Court, that there is equity 
in the bill. Indeed, the equity of this bill is stronger than 
it was in that, for the reason, that while the facts are in the 
main similar, they are rather more complicated in this case, 
owing to the proceeding^ which took place in Harris county, 
under the first bond given by McDougald. 

It is olgected to the additional all^;ation in this bill that 
while it charges in the first instance the insolvency of Mc- 
Dougald, it then modifies the charge by stating that if not 
totally insolvent his estate is insufficient to answer the amount 
of his liability to the complainants. The defendants insist 
that taking the averment most strongly against the pleader 
that it only alleges that the principal's means are limited 
greatly below the amount which the complainants are entitled 
to recover ; and that a portion of the recovery will fieill upon 
the securities. Concede this. Still if there is any deficiency 
to be collected out of the securities the equity of the bill is 
undiminished. I will go further. If complainants in this 
and the like cases, allege a well grounded apprehension, that 
from any cause whatever, they have reason to fear that the 
property of the principal will not be enough to satisfy their 
recovery when obtained, the equity of the bill will remain 
unaffected. It is only where the principal is solvent that 
they lose their right to come into equity. True, the party 
interested has the right under the statute to sue principal 



MAOON JANUARY TERM 1861. 71 

McDongald, adm'r, etoL^vs, Maddox and Wife. 

and securitj ia the same action ; but looking only to their 
own oonvenience, who will act so unwisely as to court 
unnecessary delay and expense by seeking to involve securi- 
ties, when the principal is abundantly able to respond. If 
indiscreet enough to do this when there is no necessity for it, 
the aid of a Court of Chancery will be invoked in vain to 
interpose to relieve the party from an embarrassment volunta- 
rily incurred, for the simple reason that there was no relief 
needed. 

And suppose the plaintiff sues principal and securities 
together at law on any one of the bonds, and that set of secu- 
rities prove satisfactorily that the devastavit did not occur 
during the time for which they were liable — the difficulty 
suggested in Mercer's case, 7th Georgia — still a judgment 
will go for the whole amount against the principal ; and if 
he be good, what matters it that the securities get off? 

Some question was made as to the non-joinder and mis- 
joinder of parties. If this ground was well taken, the bill 
oould be amended. But our judgment is that no necessary 
parties are omitted. 
Is the plea in bar good ? 

It is well settled by this and all other Courts, that the dis- 
missal of a former bill is only a good plea in bar when the 
material allegations in the two bills are the same ; (7 Johns, 
Ch. Bep. 1 ; 3 DeSaussure Rep., 63.) Now the foriper bill 
failed to allege the insolvency of McDougald ; and was dis- 
missed because the complainants showed no title to the relief 
which they sought. The present bill contains that averment ; 
in other words the complainants show title to the relief which 
they seek. The two bills, then, are materially different, and 
ooDsequently the dismissal of the first constitutes no bar to 
the bringing of the second. 
Judgment affirmed. 



72 SUPREME COURT OP GEORGIA. 

Mapp V8, Phillips. 

1 ' 

Mapp va, Phillips. 

1. A party having at different times had two agents appointed seTerally 
in the same business, upon a question as to the extent of aaihoritj 
given to the second agent, is not competent to prove the declaratioas 
of the first agent, as to his own powers, whilst holding the agency. 

2. Where an agent is confessedly acting under a power of attorney, or 
written authority, his own declarations enlai^gingn&f^ powers, are 
incompetent evidence to bind hisj^rincipal. *'-« 

8. If an agent having possession of his principal's property for a sptteific 
purpose sells it, without authority, and absconds with the money, ra(f^ 
fication by the principal, will not bo established by his declaration 
that if he could get his money he would be satisfied. 

4. In such a case, three months* forbearance to .sue the purchaser for 
the property so illegally sold, will not, alone, amount to such acquie^ 
cence as will establish ratification. *■ 

Trover in Bibb Superior Court. Triedf before Judge 
Lamar at the November Term, 1860. 

This was an action of Trover, commenced on the 2d day 
of August, 1859, by Eaton J. Mapp, against William R. 
Phillips, to recover damages for the alleged conversion of a 
negro man slave, named Isaac. 

On the trial of the case in the Court below the following 
testimony was adduced, to-wit : 

EVIDENCE FOR THE PLAINTIFF. 

John Rutherford testified : That he once owned the 
negro boy, Isaac, sued for in the action, and as the negro was 
in the habit of getting drunk, and did not therefore suit him, 
he swapped him to Gilbert, as the agent of the plaintiff, for a 
negro by the name of Washington ; that Gilbert and Mapp 
both told witness that Gilbert was Mapp's agent for the purpose 
of the exchange of negroes ; that Mapp made a bill of sale to 
witness for the negro which Gilbert as Mapp's agent swapped 
for Isaac; that Isaac was worth $1,100; Gilbert was after- 
wards trying to sell Isaac, and claimed to be Mapp's agent 
for that purpose, but witness never heard M>ipp say that he 
had authority to thus dispose of the negro, but supposed that 
Gilbert had the authority to sell the negro, as Mapp bad 
recognized his agency in the exchange aforesaid. 



MACON JANUARY TERM 1861. 73 

Mapp vi. Phillips. 

Jambs V. Grier testified : That Gilbert, as Mapp's agent, 
hired the negro in dispute to Grier & Masterson daring the 
year 1858, and received the hire therefor, until he, Gilbert, 
ran away; that. some time afler Bishop sold the negro to 
Cox, the witness saw Mapp in Americus and in Macon look- 
ing for Bishop, to get the money for which he sold the negro 
to Cox; that Mapp also told witness that he went to Alabama 
partly on^he same business; that Mapp told wituess that he 
h^d" authorized Bishop to sell the negro to Gen. Armstrong, 
and that if he could get the money which Cox paid Bishop 
for the negro, he would be satisfied ; that when witness first 
saw Bishop he told the witness that he was Mapp's agent, 
and he also showed witness a letter which Mapp had sent to 
Geo. Armstrong. 

Thomas J. Cox testified: That as the agent of Phillips, 
the defen<|^nt, he bought the negro in dispute, from Alfred 
Bishop, and paid him $1,300 for him ; ^hat witness put the 
negro in the guard house, and that Phillips sent the negro to 
New Orleans, where he was sold. 

Counsel for the plaintiff* objected to the testimony of Ruth- 
erford as to the sayings of Gilbert unless his agency was 
established, which objection was overruled by the Court, and 
plaintifi* excepted. 

EVIDENCE FOB DEFENDANT. 

Giles Griswold, in answer to interrogatories, testified : 
That about the last of April, or the first of May, 1859, at 
Griswoldville, in Jones county Georgia, the plaintifi*, Mapp, 
told the witness that he gave Alfred Bishop a power of attor- 
ney to sell the negro in dispute, and that he had come to 
Griswoldville to make inquires for Bishop, knowing that 
Bishop had been, or was still agent for Samuel Griswold ; 
that after plaintiff learned that witness had not heard of 
Bishop for some time, he expressed fears that he would lose 
the money for the negro ; that plaintiff also said he was going 
to Macon to enquire about Bishop, but did not say for what. 

Thomas J. Cox being recalled by the defendant^ testified : 
That as the agent of Phillips, he bought the negro fron^ 



74 SUPREME COURT OF GEORGIA. 

Mapp vs, Phillips. 

Bishop on the 4th of March, 1859 ; that Bishop told witness 
that he was Mapp's agent, and was by him authorized to sell 
the negro to any person, that he had come to sell or com- 
plete a contract made by Gilbert with Gen. Armstrong, 
and that if Armstrong did not take the boy, he, Bishop, was 
authorized to sell him to any one who would give $1,300 for 
him; that Bishop referred witness to G^n. Armstrong for his 
authority ; that witness went to Armstrong, who read to him 
a part of a letter from Mapp to him, which Bishop had 
brought, and witness then went to Bishop and made the 
trade, as he has already testified to, in behalf of plaintiff; 
that Bishop made, at the time, the following bill of sale 
to- wit: 

" Georgia, Bibb County : 

'* Received of T. J. Cox $1,300, in full payment for a cer- 
tain negro man named Isaac, light complexion, twenty-four 
years of age, whicfaf boy I warrant to be sound in body and 
mind. I also warrant and defend the right and title of said 
Isaac, and a slave for life. This March 4th, 1859. 

"ALFRED BISHOP, 

" Agent for E. J. Mapp. 
" Witness : 

" Job H. Cherry.'* 

Counsel for the plaintiff objected to all the testimony rela- 
tive to tlie sayiDgs of Bishop as to his authority to sell the 
negro, and as to any and all statements of Bishop not strictly 
within the scope of the letter given him by Mapp to Arm- 
strong. 

EVIDENCE FOB THE PLAINTIFF IN BEBUTTAU 

Gen. James W. Ahmstrong testified : Gilbert, as the pro- 
fessed agent of Mapp, bargained the negro in dispute to the 
witness at $1,250; that Gilbert said he would take the re- 
sponsibility of selling the boy to me ; that the negro was left 
in my possession until Mapp could be heard from ; that wit- 
ness waited to hear from Mapp for two or three weeks ; that 
in the mtantime Gilbert ran away ; witness then wrot^ to 
Mapp about the trade, and some time thereafter Alfred Bishop 



MACON, JANUARY TERM, 1861. 75 

Mapp V8, Phillips. 

- 

brought to witness a letter from Mapp, and the witness find- 
ing that the boy was a drunkard and a gambler, and would 
not suit him, and that the price was raised to $1,300, he de- 
livered the boy to Bishop ; that on the same day, and before 
Cox bought from Bishop, Cox called on witness to know 
what authority Bishop had to sell the negro, when witness 
got the letter aforesaid, and read the material points to him; 
that this letter was the only authority which Bishop pur- 
ported to have from Mapp to sell the boy to me, and it was 
upon the authority of the letter that witness gave the boy up 
to Bishop ; that Gilbert had had the boy in Macon for sale 
some time before witness bargained for him ; that the follow- 
ing was a copy of the letter, to-wit : 

"February the 25th, 1859. 
" Qd, Armstrong: 

Sir : — I received your favor of the 10th instant, stating 
that Mr. Gilbert had sold you my boy I3aac for $1,250, for 
which he had no authority for so doing ; but in my response 
to you, in reply to yours of the 10th, I gave you the full 
particulars of all the circumstances, which I think will give 
full satisfaction to you, etc. I now send Mr. Alfred Bishop, 
fully authorized to represent me in all the particulars to sell 
vou Isaac, to receive the pay, to make you a full and legal 
bill of sale, or to receive him and bring him home; in short, 
to transact any business on that subject for me. I think 
T?heu you see Mr. Bishop and talk with him on the subject, 
that you will be satisfied on the subject. Now, sir, any trade 
or settlement that Mr. Bishop makes with you in relation to 
the boy Isaac, in writing or word, for me, you may consider 
it full and l^al, as he is my agent, and is ready and willing 
to testify to the illegality of the sale of the boy to you at the 
time you bought him, etc. I hope you and Mr. Bishop will 
settle without any further delay or trouble. 

*' Respectfully yours, 

" E. J. MAPP. 

'^ I send in the care of Mr. Bishop. 

^ P. S. Col. : If you and Mr. Bishop should not agree in 



76 SUPREME COURT OP GEORGIA. 



Mapp vs, Phillips. 



terms of the price of the boy, please deliver him up to said 
Bishop to bring him home for me^ and you will much oblige, 

" E. J. M." 

Upon these facts, and under the charge of the Court, the 
jury returned a verdict for the defendant. 

Counsel for the plaintiff then moved for a new trial, pred- 
icated upon the following grounds, to-wit : 

1. Because the Court erred in overruling the objection of 
plaintiff's counsel to the testimony of Rutherford as to the 
sayings of Gilbert and his doings. ^f 

2. Because the Court erred in admitting. (over the objec- 
tion of plaintiff's counsel) the testimony 6f Cox as to the 
sayings of Bishop in regard to his auti^ity from Mapp to 
sell Isaac to any person. . ' » 

3. Because the Court erred in admitting in evidence the 
statements of Bishop, which were not strictly within the 
scope of the letter given to him by Mapp to Armstrong. 

4. Because the verdict is decidedly and strongly against 
the weight of evidence. 

6. Because the verdict is against law and evidence. 

The presiding judge overruled the motion and refused the 
new trial, which decision is the error complained of in this 
case. 

Bajley & DeGraffenreid for plaintiff in error. 

L. N. "Whittle for defendant in error. 

By the Court — Jenkins, J., delivering the opinion. 

1. The testimony of Rutherford, the admission of which 
is the error assigned in the first exception, related to the 
authority given to another agent of the plaintiff in error to 
sell this slave. This agency, whatever it may have been, 
had expired before the agency was cast upon Bishop, who 
sold to the defendant. Bishop was not a sub-agent, appoint- 
ed by Gilbert, the first agent, but derived his authority di- 
rectly from Mapp, the plaintiff in error, and that, too, after 
Gilbert had absconded. We do not perceive how the second 



MACX)N, JANUARY TERM, 1861. 77 

— ^ — ■ - ■ I 

Mapp vs. Phillips. 

agency can be connected with the first, for the purpose of 
enlarging the powers of the second. The two delegations of 
authority being entirely distinct acts, it was certainly the 
privilege of the principal, either to curtail or to enlarge the 
authority. If this evidence of Rutherford's was offered to 
show the extent of Bishop's authority, it was incompetent and 
illegal. If for any other purpose,-it would seem to be irrel- 
evant, and therefore illegal. We think the Court helow erred 
in admitting jt. 

2. The 2d ^nd 3d exceptions assign error, in that the Court 
erred in permitting Cox, who was the agent of the defendant 
in error, in the purchase of the slave Isaac, from Bishop, as 
agent of the plaintilT in error, to testify to the sayings of 
Bishop as to his authority io sell ; those sayings not being 
strictly within the scope of his written authority; It appears 
that at the time of Bishop's appointment as agent, the slave 
Isaac, the subject of this agency, was in the possession of one 
Armstrong, then in treaty with the plaintiff in error for the 
purchase of him.. Bishop was sent by the owner, to Arm- 
strong, with a letter, stating that he. Bishop, was fully author- 
ized to negotiate with Armstrong touching the sale; and 
failing to effect that, was to receive Isaac from Arm- 
strong, and take him back to his owner, Bishop's principal. 
This is distinctly stated in the body of the letter, and as dis- 
tinctly repeated in a postscript. Bishop, failing to negotiate 
a sale to Armstrong, received the boy Isaac from him, and 
instead of taking him home, to his owner, took him to Macon 
and pat him upon the market for sale. Cox, the agent of 
the defendant, commenced a negotiation with Bishop for him, 
hat took the precaution to inquire into Bishop's authority to 
sell. Being referred by Bishop to Mapp's letter to Arm- 
strong, as the evidence of his authority in the premises. Cox 
went to Armstrong, seeking information. He testifies that 
Armstrong read him a part of the letter, whereupon he re- 
turned to Bishop and made the purchase. Armstrong testi- 
tifies that he read to Cox '* the material points " of the letter. 
Points material to what ? Clearly to Bishop's authority to 
sell the slave. 



78 SUPREME COURT OF GEORGIA. 

Mapp vs. Phillips. 

In this letter there is no ambiguity whatever. It is an 
authority to sell to Armstrong ^ not to any other person ; not a 
general authority to sell. Bishop distinctly stated to Cox 
that this letter contained his authority in the premises. Any 
declarations^ therefore, of Bishop to Cox, claiming for him- 
self a larger authority than that conferred by the letter, were 
clearly incompetent evidence. Story on Agency^ sec. 76. Pa- 
ley on Agency ^ 179, and note. Ibid, 198, and note, Hogg vs. 
Smith,, 1 Taunt, R, 347, 352. Murray vs, Ea. Ind, Co,, 5. 
B. & A. 204-210-211. We, therefore, think there was error 
in this ruling. 

3. The remaining exceptions assign error, in that the Court 
below refused to grant a new trial on the ground that the 
verdict was contrary to law and evidence. 

Counsel for defendant in error seek to sustain the verdict 
on two grounds, 1st, that there was sufficient evidence of 
Bishop's general authority to sell, and 2ndly, that plaintiff in 
error subsequently ratified the act. 

The authority to sell must be derived either from the let- 
ter to Armstrong, from Bishop's declarations, or from the 
declarations of the plaintiff in error, as testified to by Oris* 
wold. 

We find no such authority to sell in the letter to Arm- 
strong, (which see in statement.) All expressions in the 
letter conveying the idea of full power, in Bishop, as the 
agent of plaintiff in error, relate expressly to the sale to 
Armstrong. It is clear that the writer did not contemplate 
a sale to any other person. It is clear he intended that, in 
the event of Armstrong declining the purchase, Bishop should 
receive the slave, and take him back to the oumer ; nothing 
more. Humane masters desiring to sell slaves, are always 
cautious into whose dominion they transfer them. This is a 
plain dictate of humanity; an obvious duty. But in any 
view, the law recognizes the right of the principal by clear, 
unequivocal terms, to limit the power of his agent. We 
think it was clearly limited in this instance by the written 
authority, and that the limitation was as clearly exceeded. 

We have already said that the declarations of Bishop, to 



MACX)N, JANUARY TERM, 1861. 79 

Mapp vs, Phillips. 



enlarge the authority conferred by the letter, were incompe- 
teot evidence for that purpose, and have only here to add 
that from this source^ no general authority can be derived. 
Mapp, the plaintiff in error, stated to Griswold, '^ that he 
had given to Bishop, a power of attorney to sell this slave, 
that he had heard nothing from him since — ^was going to 
Maoon to inquire about Bishop — and knowing that he had 
been in the employment of Griswold, had stopped there to 
inquire) and (finding Griswold ignorant of his whereabouts) 
feared he (Mapp) would lose his money." 

If the written authority, in evidence, will answer the de- 
scription given by Mapp in this conversation of the power 
to Bishop, be must be understood to refer to that — unless 
there be other proof that he had actually given some other 
authority in writing touching this business. 

The letter to Armstrong is certainly, not in form, a tech- 
nical power of attorney. But the law does not exact techni- 
calities in such matters. It requires only a clear, distinct 
expression of the authority intended to be conferred. The 
power intended here, being a special limited one, was well 
set forth in a letter to the only person to whom the writer 
gave the agent authority to sell. Still it wds a power of at- 
iomeytoseU the negro. Circumstances did not require more 
detail in this conversation than Mapp used. Jt does not 
appear that he knew, then, of the sale by Bishop to defend- 
ant in error. Indeed the reasonable presumption is that 
Bishop bad lefl him wholly ignorant of his acts and doings, 
and it is but fair to infer that he then supposed Bishop had 
sold to Armstrong, as authorized, and made way with the 
purchase money, and hence his fears that he would lose it. 
To hold that, in this conversation, Mapp referred to some 
other power of attorney, would be a forced construction of 
language. So that, we do not find in (kis, evidence of a 
general power to sell. 
The remaining question is that of ratification. 
The evidence of it is said to be found, 1st, in the evidence 
of Griswold ; 2d, in that of Grier ; 3d, in his long acquies- 



80 SUPREME COURT OF GEORGIA. 



Mapp vs. Phillips. 



cencG. It is conceded that there has been no direct positive 
ratification. It is arrived at inferentially. 

To infer ratification, either from declarations or acts, it 
must appear affirmatively, that at the time of making the 
declarations, or doing the acts, the principal knew that the 
agent had performed the act, claimed to have been ratified. 
It does not appear that at the time of his conversation with 
Griswold, plaintiff in error knew that Bishop bad sold the 
slave to defendant in error ; indeed, the contrary would seem 
to be highly probable. We, therefore, find no evidence of 
ratification in Griswold's testimony.- 

Is it to be found in Greer's testimony? All that bears 
upon this question is this, '' witness saw Mapp in Americus 
and in Macon, looking for Bishop, to get the money for 
which he sold the negro to Cox ; that Mapp also told wit- 
ness he went to Alabama, partly on the same business ; that 
he (Mapp) had authorized Bishop to sell the negro to Gren« 
Armstrong ; and that if he could get the money which Ck>x 
paid Bishop for the negro, he would be satisfied.'' In this 
conversation, speaking of the authority he had given Bishop, 
he states, in entire consistency with his written authority, that 
he had authorized him to sell the negro to Gen. Armstrong. 
This was equivalent to saying that he had not authorized the 
sale actually made ; but he adds, if he could get the money 
paid to Bishop he would be satisfied. At most it is only a 
declaration that he would ratify the sale on a certain condi- 
tion. This, and any efforts he may have made to find Bish- 
op, may be put to the account of a desire to avoid litigation — 
to submit to a wrong on certain terms ; and was advantageous 
to the defendant in error, who should not be permitted to 
wrest such declarations and acts to the prejudice of plaintiff. 
There is nothing in it which amounts to, or indicat4?s'the in- 
tention of, ratification. 

Beyond this there is no evidence of acquiescence other than 
the lapse of time, between his knowledge of the sale and the 
commencement of the action. It appears that about three 
months intervened. It does not appear that any term of any 
court, having jurisdiction of the case, had been allowed to 



MAOON, JANUARY TERM, 1861. 81 

Smith V8, Griffin. 

pass. There is no settled limitation of time within which 
suit miLst be brought, to avoid the legal inference of ratifica- 
tion. The authorities say that acquiescence, or non-action, 
more properlj speaking, must not extend beyond a reasonable 
time. Circumstances must always be looked to to determine 
what is a reasonable time. We think that, under the cir- 
cumstances of this case, the action was commenced within a 
reasonable time. 

Our opfnion is that the verdict is contrary to the law and 
the evidence, and that, for all the reasons assigned in this 
opinion, the Court below erred in not setting aside the ver- 
dict and ordering a new trial, and we therefore reverse the 

Judgment reversed. 



Smith vs. Griffin. 

1. Upon tlie trial of a case in eqnitj, brought by a legatee against an ez- 
ecQtor, for account and distribution, if it appear that the inTentory 
famished by the executor to the appraisers shows only the aggregate 
of debts due the estate, without the names of the debtors ; and if the 
tppnisement of personalty (there being realty also) amount to a large 
mij^and subsequent returns of the executor (not being made annual* 
lyrSoow only expenditures and no receipts ; and if the answer of the 
defendant be vague and unsatisfactory, after the lapse of many years, 
great latitude should be allowed the complainant in offering evidence to 
charge the defendant. All evidence (not positively illegal) tending 
even remotely to elucidate the case, should be admitted. 

2. If an executor sell the effects, assets or choses in action of the es- 
tate without an order of the Court of Ordinary, or other lawful au- 
thority, at private sale, he is liable for the real value, if that be greater 
than the price for which he sold. And in the case of a chose in action^ 
thus sold, if the real value cannot be ascertained, his liability would be 
either for the amount of the sale, or the sum appearing upon the face 
of it, to have been due, as the one or the other might be the larger 
sam. 

^ In such a case as that stated in the first syllabus, it is error in the 
Court to charge the jury that, afler having put the inventory of choses 
in action in evidence, the complainant must *'go farther, and show the 

6 



82 SUPREME COURT OF GEORGIA, 



Smith V8. Griffin. 



txioney due upon those choses in action to have been collected or col- 
lectable.*' 

4. In such a case it is error in the Court to charge the jury '' that the re- 
turns of the defendant, having been allowed by the Court of Ordinary, 
and thus adjudged by a court of competent jurisdiction, are prima 
facie evidence for the defendant, and will be conclosive, unless re- 
yersed or impeached for fraud or other cause.'' Returns made by an 
executor or administrator appearing, upon inspection, to have been 
made contrary to law, or to be fraudulent, do not make a prima facie 
case for him, and are to be taken strongly against him. 

5. A judgment of a Court of Ordinary allowing a schedule of debts re* 
turned by an executor or administrator as desperate, is prima facie 
evidence for him, and will, of course, be conclusive ou a trial of a bill 
for account and distribution, unless rebutted. But it is competent for 
the complainant to prove in rebuttal that any debtor named in such 
schedule was solvent, and that by the use of due diligence psiyment 
of the debt might have been enforced. Such evidence, if credible, is 
sufficient to shift the onus and require ^he defendant to show why 
the debt was not collected. In such a case, it is the provThce of the 
jury to determine, from all the evidence, whether or not the defendant 
shall be charged with the debt. 

In Equity, in Dougherty Superior Court. Tried before 
Judge Allen, at the June Term, 1860. 

On the 12th day of October, 1847, Thomas P. Smith filed 
his bill in equity in the Superior Court of Baker county, 
against Hardy Griffin, to which bill several amendments were 
made, in one of which amendments the complainant alleged 
that, owing to a failure on the part of the custodian of the 
records to find and give him access to said records, I>e did 
not ascertain and find out the frauds, wastes, devastavits, 
and mismanagements perpetrated by the defendant, and set 
out in the bill, until after the original bill had been filed, 
and that the frauds being undiscovered, the statute of limi- 
tations, or lapse of time, was not in his way so as to bar bis 
recovery. 

The bill and amendments embody the following allegations 
and charges, to- wit: 

On the 4th day of February, 1819, Benjamin Smith exe- 
cuted his will in Laurens county, in which he directed that, 
after the payment of his debts, his executora should keep 



MACON, JANUARY TERM, 1861. 83 

^ ■ — ' — — 

Smith pjT. Griffin. 

the residue of his property together, for the support of his 
wife and children, until his oldest child should become of 
fall age^ when his or her distributive share should be given 
off to such oldest child ; and that the residue of the property 
should be still kept together, until the next child become 
of age, and his or her share should be given off as before, 
and so on, until the youngest child should arrive at full age. 
Hardy Griffin and Britten Jordan were appointed executors 
by the will. In 1819 the testator died, and the will was 
proved and recorded in the proper office in said county of 
Laurens, by the said Hardy Griffin, who alone qualified as 
the executor of said will. The testator left five children, to- 
wit: the complainant Thomas P. Smith, James B. Smith, 
Eliza Smith, who afterwards intermarried with John Jordan, 
Mary W, Smith, who intermarried with Green H. Brazeal, 
and Nancy W. Smith, who intermarried with John Chapman. 
Mrs. Chapman afterwards died, leaving two children surviv- 
ing her. Hardy Griffin took the charge and possession of 
the testator'8 estate, consisting of lands, negroes, stock of 
various kinds, household aud kitchen furniture, money, notes 
and other cboses in action, of the aggregate value of twenty 
thousand dollars, over and above the payment of all debts 
and charges against the said estate. Complainant, who, as 
one of the children of the testator, is entitled to one-fifth of 
the net proceeds of said estate, has, time and again, demand* 
ed an accounting and settlement from the said Hardy Griffin, 
who has failed to settle and account with the complainant, 
falsely pretending that the estate was insolvent, that nothing 
was due complainant, and that having made full returns and 
settlements with the Inferior Court of Laurens county, when 
sitting for ordinary purposes, he, the said Hardy Griffin, had . 
been discharged from his trust as executor of said estate. 

The bill alleges that if the said Hardy Griffin has made 
any settlement, as he pretends, the same was unfair, untrue, 
and fraudulent, and that if he has been discharged from his 
trast, the discharge was obtained by fraud and imposition 
upon the Court ; that Griffin has lately admitted to E. H 
PUtt, Esq., that there was one error in his account with sai^^ 



84 SUPREME COURT OF GEORGIA. 

Smith V8, Griffin. 

estate, and against said estate, of $10,000 ; that complain- 
ant expects to be able to show on the trial of this case many 
errors, frauds, cheats and other wrongful acts, which he 
charges to have been committed by the said Griffin, by which 
the said Griffin has converted said estate to his own use, and 
deprived complainant of his rights in the premises; that said 
Griffin erred in his returns in charging said estate with the 
sum of $11,047 86, when the item should have been only 
$1,147 86 ; that said Hardy returned, as having been paid 
by him, accounts against said estate, as follows, none of which 
were due from said estate, and which said Griffin knew were 
not so due, to-wit: an account in favor of William Vickers 
for $425 60: a note in favor of William Faircloth for 
$470 48, neither of which were ever returned until after the 
death of Vickers and Faircloth ; one in favor of said Griffin 
for $162 39; two in favor of C. S. Guyton, one for $1,047 86, 
and the other for $1,039 52 ; one in favor of Charles Creach 
for $161 50 ; one in favor of Samuel Carson for $68 87 ; 
one in favor of Eli Shorter for $40 00 ; one in favor of 
David Creach for $64 05; one in favor of Judy Averitt for 
$37 50 ; three in favor of Dickerson Ricks, one for $40 00, 
another for $116 18, and another for $9 43 ; two in favor of 
Benjamin Dorsey for $565 61 ; one in favor of Benjamin 
Averitt for $137 62; one in favor of William R. Peck for 
$387 67; two in favor of Amos Love, one for $109 00, and 
the other for $600 00 ; one in favor of A. Love & Co. for 
$500 00 ; one in favor of the same for $600 00; two in favor 
of Uriah Richardson, one for $318 29, and the other for 
$105 56; one in favor of Benjamin Faircloth for $47 60; 
one in favor of Henry Partridge for $76 70 ; that the said 
Hardy Griffin returned to the said Inferior Court of Laurens 
county, when sitting for ordinary purposes, claims due said 
estate, and represented as being desperate, and on insolvent 
debtors, when in truth and in fact the claims were perfectly 
good, solvent andcoUectable, with reasonable diligence on the 
part of said Griffin, which claims are as follows, to-wit : one 
against the estate of B. Averitt for $7 89 ; one against Da- 
vis Griffin for $4 50; one against Elizabeth Griffin for 



MACON, JANUARY TERM, 1861. 85 

Smith vs. Griffin. 

$3 29 ; two against the estate of S. Carson, amounting to 
$102 18 ; one against Ashton Thomas for $S 75 ; one 
against Wright Saunders for $5 00; one against Thomas 
Barbour for $6 75 ; one against Jesse Fulgium for $24 87 ; 
one against J. Fulgium and B. Smith for $25 00 ; and one 
against William Hair for $37 50; that at the time Griffin 
took charge of the said estate the property inventoried was 
appraised at $7,729 02, and that the notes and accounts due 
to said estate amounted to the aggregate sum of $9,615 99 ; 
all, or most all of which, said Griffin collected, and yet jxever 
made any return of one dollar received for said estate ; that 
said Griffin failed to make annual returns of the business 
and transactions of said estate, never having made but three 
returns, to- wit : one in 1820, another in 1824, and another 
in 1828 ; that said Griffin sold cattle, lands, cotton, goods, 
wares and merchandise, which were never inventoried, and 
which belonged to said estate, for the aggregate sum of $7,- 
200 00, which he never returned or accounted for, but appro- 
priated to his own use : that said Griffin took away from the 
farm of the estate two horses, worth $150 00 ; and corn and 
cotton, made in 1822 on the farm, worth $1400 00 ; sold said 
horses, com and cotton, and neither returned or accounted 
in any manner for the proceeds. The bill further charges 
that the said Griffin, being poor when he took charge of said 
estate, accumulated negroes and other property, built fiue^ 
houses, wore costly clothes, rode in a fine carriage, drawn by 
fine horses, prosecuted heavy law suits, and maintained a 
style of expensive and dissipated living, which could be ac- 
counted for on no other reasonable hypothesis but that of a 
wrongful appropriation of the proceeds of the said estate to 
his own use and purposes, to the detriment and injury of the 
complainant. 

The bill prays for a discovery as to the facts charged, and 
that the defendant may account to complainant for his share 
of said estate. 

The defendant set up in a plea, and also in his answer to 
the original bill and amendments, that the complainant's 



86 SUPREME CSOURT OF GEORGIA. 

Smith V9, Griffin. 

right, if he had any, was barred by lapse of time, and the 
statute of limitations. 

The defendant, by his answer, admits the publication of the 
will, the death of Benjamin Smith, and the number and 
names of his children as stated in the bill. The defendant 
also admits that he alone qualified as executor, and assumed 
the execution of the will ; that testator had some land, the 
location and value of which he does not recollect, and four 
or five negroes, all of which were sold under executions 
against defendant as executor, but he cannot, from lapse of 
time ahd loss of his papers and memoranda, state how much 
the said land and negroes sold for, or under what particular 
executions the sale was had, but the proceeds were applied by 
the proper officer to the payment of the ji. fas. He alleges 
that the appraisers were not appointed or sworn according to 
law, to value the property of said estate, and that the same 
was largely overvalued by said appraisers, and insists that 
he is not bound by such appraisement ; that testator had no 
money on hand when he died; that he had some house- 
hold and kitchen furniture, worth not exceeding $150, two 
horses and some hogs and cattle, not exceeding in value $575, 
all of which were sold according to law, and applied to 
the payment of debts against said estate; that the principal 
assets of said estate, was the remnant of a stock of goods 
valued by the appraisers at $2,500, and twenty-nine bales of 
cotton, valued at $1,219, all of whicli were sold by defend- 
ant on a credit, to persons then solvent, but who afterwards 
became insolvent, and that, owing to the almost universal 
bankruptcy, which prevailed in Georgia, in the years 1820, 
1821 and 1822, a large portion of the purchase money and 
debts due to said estate were not collegt^, but said failure 
to collect was not the result of fault or negligence on the 
part of defendant; that over and above the debts of said 
estate, returned by defendant as desperate, there was a loss 
on the choses in action belonging to said estate of over 
$1,800 ; that he cannot, now, after a lapse of thirty years, 
give a statement of the debts against said estate, but he denies 
that they were inconsiderable, but amounted to not less than 



MAOON, JANUARY TERM, 1861. 87 

Smith vs. Griffin. 

$8,<XX)y all of which defendant paid ns far as he had assets^ 
and oflentimes out of his own money ; that he did not appro- 
priate to his own use any of the assets of said estate, but, on 
the contrary, advanced out of his own pocket large sums of 
money for the support of the widow and orphans of the said 
testator ; that when he took charge of the estate he believed 
it to be solvent, and, under this belief, paid many debts of 
inferior dignity, and afterwards had to, and did pay out of 
his own funds other debts which were entitled to payment 
in preference to said debts |of inferior dignity, and that, as 
the estate turned out to be insolvent, and no one but defend- 
ant was to be injured by it, he did not deem it necessary to 
make annual returns and hence, failed to do so ; that from 
the time testator died up to the time the negroes were sold, 
they were worked on the farm of deceased, but did not 
make a support any one year that they were so worked, and 
defendant paid for the sugar and coffee used by the family 
daring that time out of his own funds ; that, at this late 
day, he cannot give an account of the debts due to and from 
said estate, but denies that there was any surplus to be divi- 
ded amongst the legatees of the testator after the debts were 
paid; but, on the contrary, much of the maintenance, board, 
and education of testator's children, was paid for by defend- 
ant out of his own private funds, and from the acquiescence 
of the complainant for many years after he arrived at full 
r,ge, led defendant to believe that he was perfectly satisfied 
with the fidelity of defendant's management of said estate; 
that if complainant had called on defendant sooner, and had 
expressed any dissatisfaction on the subject, defendant could 
have satisfied him from books, papers, and vouchers, (which 
are now destroyed) that he had actually advanced and paid 
more for said estate than he ever received ; that complain- 
ant never called on him for a settlement, nor did defendant 
ever contend that he had been discharged from the executor- 
ship of said estate; that, since the filing of the bill, he has 
foand and appends a transcript and statement from the docket 
of Laarens Superior Court, of various judgments and fi.faa^ 
against him as executor of said testator, and as surviving 



88 SUPREME C!OURT OF GEORGIA. 

Smith vs. Griffin. 

partner of a firm^ under which testator and defendant once 
carried on a mercantile business; which defendant sold out to 
testator, the said testator agreeing to pay the debts against 
the firm, which he failed to do. These judgments were paid 
by defendant; but are not included in his returns made to the 
Court of Ordinary; the statement is as follows: one^. /a. 
in favor of William Godfrey, for the sum of $171 09 ; one 
in favor of S. J. Bryan, use of, etc., for $456 22 ; one in 
favor of William Butler, for $360 88 ; one in favor of 
William Godfrey, for $302 66; one in favor of Amos 
Love, for $160 83; two in favor of Andrew Love & Co., 
one for $1,401 59, and the other for $307 71 ; three in 
&vor of Thomas Butler, adm^r de bonis non, one for $64 28 ^ 
one for $214 26, and one for $185 44; two in favor of 
Lowe, Taylor & Co., one for $1,006 66, the other for $992 53; 
and one in favor of Whitaker and wife, for $1,876 ; that 
these j!. /a8. amount, in [all, to about $7000. The defend- 
ant insists and alleges that the returns made by him of pay- 
ments are true, that he paid the several sums in good fiiith, 
as genuine claims against the estate, and that the claims 
returned as desperate and uncollectable were, in fact, of that 
character ; and he insists that, as these returns were passed 
upon and allowed by the Inferior Court of Laurens county 
when sitting for ordinary purposes, the judgment that they 
were correct is a bar, and conclusive as a protection to 
defendant against the relief sought by the bill. 

The bill and answer were amended several times, and one 
amendment to the bill charged the answer by specifications 
to be false, and re-asserted th6 allegations of the original 
bill, which the answer again denied, but it is believed that 
the substance of the bill and answer is sufficiently given to 
understand the questions made and decided by this Court. 

The case was removed to Dougherty, when the said county 
of Dougherty was created. 

On the trial of the case, the bill and answer were read ; 
the complainant introduced in evidence, the will of Benjamin . 
Smith ; the inventory and appraisement of the property of 
Benjamin Smith's estate ; the different returns of the defend- 



MACON JANUARY TERM 1861. 89 

Smith vs. Griffin. 

uit, as executor, made in 1820, 1824, 1825 and 1828. Also 
the depositions of Richard M. Orme, showing an advertise- 
ment in the Southern Recorder ^ of the 2d of July, 1822, by 
U. Kinchen, sheriff of Laurens county, of negroes, Ben, 
twenty-two years old ; Charles, four years old ; Henry, three 
years old ; Tilman, one year old ; Brady, twenty-two years • 
old ; Charlotte, twenty-eight years old, Malinda, five years 
old; and one hundred acres of land, part of lot No. 170, 
with a good dwelling on it; lot No. 161 ; one hundred and 
one and one-fourth acres of lot No. 171, all lying on Rocky 
creek, and one lot on Bogay branch, all to be sold as the 
property of Benjamin Smith, deceased, to satisfy two fi, fas. 
in favor of A. Lowe & Co., and others. 

Also a certified copy of defendant's depositions, taken in 
an equity case in Dooly Superior Court, in favor of Ford et 
a/., distributees of Joab Tisou vs. Abner Tison, administra- 
tor, et a/., in which said defendant testified : That he once 
held a fi, fa., as executor of Benjamin Smith, deceased, 
against Joab and Littleton Tison, for $2,000 or $3,000, for 
cotton bought at the sale of said Smith's estate, and that 
M(^es Tison, the father of Joab and Littleton, paid him 
|500 on the Ji. fa.y and that the fi. fa. was sold to old man 
Tison ; that Joab Farrow had a negro, named Farrow, in his 
possession in the year 1822 or 1823, worth $500; that in 
1818 or 1820, he was in Savannah, and saw Joab Tison with 
twenty-five bales of cotton, said to be his father's, but that 
he, Joab, said he was going to sell it to pay his own debts. 

Also the depositions of Francis Thomas, proving that he 
was the clerk of the Superior and Inferior Courts of Laurens 
<^unty, and had searched the dockets of the said Courts, 
from the year I9I8 to 1828, and could find no case in which 
Benjamb Smith was defendant, but finds many cases against 
Hardy Griffin, as executor of Smith, and many against him, 
individually ; that he had examined the tax books of Laurens 
county fron 1819 to 1823 inclusive, and finds that Hardy 
Griffin returned property as taxable, as his own, and as exec- 
utor of Benjamin Smith, as follows : in 1819, as his own, sev- 
enteen slaves ; in 1820, as his own, six slaves, and as Smith's 



90 SUPREME COURT OF GEORGIA. 

■ 

Smith vs. Griffin. 

executor, five hundred and six and one-fourth acres of land, 
and six slaves; in 1821, as his own, eight slaves, and as Smith's 
executor, five hundred and fifty-seven acres of land, and 
seven slaves ; in 1822, as his own, eight slaves, and as Smith's 
executor, five hundred and fifty-seven acres of land, and 
. eight slaves ; in 1823, as his own, nine hundred and one- 
fourth acres of land, and nine slaves, and as Smith's execu- 
tor, one hundred acres of land. To the depositions of this 
witness w&s appended a statement from the Bench and execu- 
tron dockets of Laurens Superior Court, of various cases 
against Griffin, as executor of Smith, and as surviving part- 
ner, and individually, which statement contains the same 
cases as those embodied in the statement referred to in 
defendant's answer, except the case of Whitaker and wife, 
and one, of the case of Lowe, Taylor«& Co. The statement 
also contained various cases in favor of parties nowhere 
mentioned in the pleadings, and which were against the 
defendant, individually. This last part of the statement 
was repelled by the Court, on objection being made thereto. 

Also the depositions of Benjamin Dorsey, proving that he 
loaned Benjamin Smith $200, taking a due bill therefor; 
that after Smith's death, Griffin paid him the amouutand the 
interest thereon; that this was all the claim that witness had 
against Smith's estate; that he knew Benjamin Averitt well; 
he was a poor man, had no property that witness knew of, 
although he resided near him; Averitt kept a mill, and was 
in the habit of gambling; that witness' land joined that of 
Benjamin Smith, and Smith's land was worth $4 per acre. 

Also the depositions of James Gainer, proving that he was 
acquainted with Jesse Fulgium, who was a farmer; lived in 
Early county in 1818 and 1819 ; was in possession of three 
or more slaves and a horse or horses, and was deemed by the 
witness, good for his contracts. 

Also the depositions of Enoch Farmer, proving that his 
father, Jacob Farmer, once lived in Laurens county, but 
afterwards removed to Alabama; that he had long since died, 
and left property, amongst which was a valuable negro black- 
smith ; that witness never heard of any proven accounts, or 



MA(X)N, JANUARY TERM, 1861. 91 

Smith vs. Griffin. 

other indebtedness against his father's estate, in favor of 
Hardy Griffin, in bis own right, or as executor of Benjamin 
Smith. 

Also tbe depositions of Moses Guyton, proving that be 
was tbe brother of Charles S. Guyton, and was upon familiar 
and confidential terms with him in the years 1819, 1820, 
1821 and 1822; that during those years, he was clerking for 
his brother, John Guyton ; that during those years, his 
brother, Charles S. Guyton, was not worth $1,000, exclusive 
of two negroes, and a lot of land in Hall ceuuty, which be 
then owned ; that during all their familiar, confidential inter- 
course, be never beard bis brother, C. S. Guyton, speak of 
Benjamin Smith or bis estate being indebted to him ; that 
it is possible Griffin may have paid hira $1,000, but witness 
knows nothing of it; witness believes that C. S. Guyton 
acted as sheriff, or deputy sheriff, about those times, but 
whether in the year 1823 or not, witness does not know. 

Also tbe depositions of Daniel Powell, proving that he 
knew Samuel Carson, who once lived in Laurens county, and 
afterwards moved to Jefferson county, and there died in 1821 
or 1822; that be owned nothing but a little house and fur- 
niture, and a ''chunk" of a horse; that he had nothing to 
live on but bis labor, and was deemed by witness insolvent. 
Also the depositions of James B. Smith, a brother of com- 
plainant, proving that, in the month of August, 1822, the 
negroes of Benjamin Smith's estate were sold by the sheriff; 
that on the plantation, under Griffin's charge, there was, of 
cotton and corn together, about one hundred acres in cultiva- 
tion ; that there were two mares on the place, in charge of 
Benjamin Thompson, tbe cropper of Griffin ; that Griffin 
sold one, named Jinney, to Thompson for a yoke of oxen, 
and took one, named Hurricane Filly, away with him, and 
tept her as long as witness knew her, which was about one 
year; that in tbe years 1821 and 1822, Griffin drank and 
gambled ; that be built a fine bouse, wore costly clothing, 
and a musical watch, costing $,300, drove a fine horse and 
vehicle, the cost of which witness does not know ; that he also 
Iwught two negroes about that time, named Nath, and Ned ; 



92 SUPREME CX)URT OF GEORGIA. 

Smith vi, GriflBn. 

that Charles Creech built a gin house for Griffiu, and told 
the witness, in 1828, that he owed the estate of Benjamin 
Smith; Creech was poor and intemperate; that David Creech 
was poor, hard run, had a large family, was intemperate, and 
overseed for GriflSn in the year 1822; that from 1823 to 
1826, the complainant lived in Washington county, and from 
1831 to 1833, he lived in Laurens county, and if Griffin 
ever paid for his board, tuition or any other expenses^ the 
witness never knew or heard of it, and the witness does not 
believe that Griffin did ; that the year the plantation was 
broken up, there were made on it seven or eight hundred 
bushels of corn, and six or seven bales of cotton, all of 
which was taken off by Griffin, and housed and mixed with 
his other produce. 

Also the depositions of Henry Cooper, proving that he 
was a citizen of Laurens county in 1819, and that shortly 
after the death of Benjamin Smith, he bid off, at an auction 
sale of his property, a stock of cattle, at that time in Ala- 
bama, in charge of Silas Johnson, for which the witness paid 
Griffin, executor of the said Smith, $116 16. 

Also the depositions of James Taylor, proving that he and 
Andrew Lowe and James Lowe, under the mercantile firm 
of Lowe, Taylor & Co., commenced business in Savannah in 
1828, and dissolved in 1834 ; that the firm sold goods to 
Hardy Griffin, who failed to meet his notes at maturity, and 
they were placed in the hands of attorneys for oollei^tion ; 
that one of his notes for $1,067 33 was placed in the hands 
of E. D. Tracy, of the law firm of Tracy & Butler, in 1834; 
that the goods were sold to Griffin on his individual respon- 
sibility, and if he had a partner, or gave security, witness 
does not recollect it ; the witness is quite sure the filrm of 
which he was a member never got the money on the note ; 
the goods were sold to-Griffin for re-sale in Laurens county. 

Also the depositions of Charles Creech, proving that he 
owed Benjamin Smith a store account, and Smith owed him 
for some work done for him ; that after Smith died, his exec- 
utor, Griffin, sued the witness on several notes in the Jus- 
tices' Court, obtained judgment and jl./a., which were levied 



MACON, JANUARY TERM, 1861. 



on the horse and crop of witness, and the horse sad crop 
were sold and bought by GrifBo ; witness did various jobs 
of work for GrifRa ; Griffin got a bale of cotton belonging 
to witness, under pretence of paying off said executions ; 
that for the work done by witness forfienjaoiiD Smith he 
never received one cent from Griffin ; tliat he never presented 
a proven account on Smith's estate to Griffin, nor did Griffin 
ever have any showing that he had paid witness a cent, to 
the hest recollection of witness. 

Also the depositions of Silas Johnson, proving that lie 
<leliverecl to Henry Cooper nineteen head of cattle belonging 
to the estate of Benjamin Smith, deceased, according to the 
tffder of Hardy Griffin, in the year 1819, at which time cows 
and calves were selling at from $25 to $30. 

Also the depositions of Mary Stewart, proving that she 
irasthe sister of Benjamin Smith, deceased; that her first 
hosband was named William Vickers ; that her father lefl 
some n^ro property to her mother for life, and after her 
death, to be divided among his children ; that, in this prop- 
erty, the witness had one-fifth interest; that her husband 
never sold it to Benjamin Smith or any one else ; that said 
Smith claimed two shares in the n^ro property, his own and 
His brother Jerry's, and in 1824 or 1825, Griffin came to the 
Honse of witness' mother, in Newton county, and made 
SDiae proposition about the negroes, which disturbed witness' 
mother very much, and which she rejected ; that witness 
never heard of any proven account for her share in the ne- 
groe being presented th Griffin by her husband, or being 
paid by Griffiu ; that when Griffin came to Newton county 
to lee witness' mother, Vickera had been dead several years ; 
that the witness sold her share in the negroes to a " 
Bridges, of Coweta county; that Benjamin Smith told 
"«», asbort time before bis death, that he had made 
810,000 in a short time; that the witness knew Jesse 
gium, and that he was a man of property, and oonsii 
good for his debts. 

Complainant also introduced in evidence two jS. /a*. 
Uorens Superior Court, in favor of Andrew Lowe & C 



94 SUPREME COURT OF GEORGIA. 

Smith V9. Griffin. 

Hardy GrifBn, surviving partner ; one dated 28th March, 
1822, issued from a judgment dated 12th of March, 1822, 
for principal $978 09. This fi, fa. had a levy on it, upon 
the property mentioned in the testimony of Mr. Orme, and 
also that the property sold for $2,070, part of which was 
paid to other ^. fas. These entries were signed by U- Kin- 
chen, Sheriff. There was also on the fi. fa. a receipt to 
Kinchen for $525, dated 11th September, 1822, signed by 
Rockwell Morgan ; also a receipt to Kinchen for $720 29, 
dated 7th August, 1823, signed by Arthur A. Morgan for S. 
Rockwell, survivor of Rockwell & Hepburn, plaintiff's at- 
torneys. Also, an undisposed of levy, on a negro named 
Ned, as the property of Griffin, dated 9th January, 1823. 
Also, a receipt signed by nobody, to Hardy Griffin for 
$105 59, in full for the fi. fa. dated 11th January, 1823. 
The other fi. fa. was dated 1st January, 1824, issued from 
a judgment dated 26th April, 1823, for $515 75 principal, 
and $490, 94 interest to judgment. On this fi. fa. was a 
levy on a negro named Nathan, and one named Captain, as 
Griffin's property, dated the 22d of March, 1824; : nd a re- 
ceipt of the same date to Griffin for $1,047 86, signed by C. 
S. Guy ton. Sheriff; a receipt to Guy ton, dated 3d May, 1824, 
for $1,044 52 in full of principal, interest, tax, and jury fee, 
signed by S. Rockwell, plaintiff's attorney. 

Complainant also introduced a certified copy of a receipt 
returned by Griffin to the Court of Ordinary of Laurens 
county, on the 13th of November,, 1824, dated 22d March, 
1824, signed by C S. Guyton, acknowledging that GriiSn, 
the surviving partner of Smith & Griffin, had paid him 
$1,047 86, on a jfi. fa. against said Griffin, in favor of Andrew 
Lowe & Co., which money was paid on said ^. /a. 

Complainant introduced the Hon. Lott Warren, who tes- 
fied : that he was a clerk for Amos Love & Co., in Dublin, 
previous to 1820 ; that he knew Jacob Farmer, Davis Grif- 
fin and Thomas Barlow; Farmer was good; Davis GriflKn, 
was a brother of defendant, and was a young man highly re- 
spected, whose parents had means; Barlow was a man of age, 
and had means to pay all his contracts; witness would have 



MACON JANUARY TERM 1861. 95 



Smith vs. Griffin. 



credited any of them for his employer ; Amos Love died in 
the winter of 1823 and 1824 ; witness knew Kinchen well; 
in 1819, he was a young man, without visible means except a 
horse ; witness knew him up to 1824 ; Kinchen was Sheriff 
of Laurens county, but never had any property to any 
amount ; finally he fell into habits of dissipation, and be- 
came pecuniarily worthless ; Charles S. Guyton was a very 
young man in 1819, and was clerking for his brother; in the 
early part of 1819, cotton was worth from 25 to 30 cents, but 
went down very low in the fall of that year ; in the year 
1822, cotton was worth seven cents at least, and corn was 
worth that year, in Laurens county, at least, 50 cents per 
bushel. 

Complainant then offered the following evidence, which, 
upon objection being made thereto, was repelled by the Court, 
on the ground that the same was not relevant to the issues in 
tlie case, to-wit : 

The depositions of Timothy Sears, proving that Hardy 
GriflBn, as executor of Benjamin Smith, deceased, recovered 
sixty-four judgments before witness, as a Justice of the Peace 
in Laurens county, against Joab Tison, maker, and Joseph 
Davidson, Sen., John Davidson and A. W. Jordan, endor- 
sers; that^./a«. were issued, and property sold under them, 
and that a number of the executions were satisfied by the 
constable in presence of witness ; that Tison and the David- 
sons were good at that time, but afterwards became insolvent. 
The depositions of William Z. Bailey, proving that he 
overseed for Griffin in 1821, and worked for him on his 
place in the following two years ; that he received with his 
wife three negroes, but got none from his father; that during 
the years 1820, 1821, 1822 and 1823 he bought four negroes, 
Ned, Sylla, Harriet and Nathan ; that he also built a two 
story house, the cost of which he does not know; tliat he 
bad fine horses, and good vehicles, and a musical watch, 
which he said cbst $200 ; that Griffin told witness that Jack 
Brown won from him at Milledgeville 0500, before his seat 
warmed in the chair; that Griffiu sold a hoi"se, named Selim, 
to Henry Fuqua for $200, 



96 SUPREME COURT OF GEORGIA. 

Smith vs. Griffin. 

The depositions of Henry Fuqua, proving that the general 
impression was that Griffin was managing Smith's estate 
badly ; that his conduct was not that of an economical exec- 
utor ; that he " was acquainted with all those men — was a 
merchant at the timC; and sold them goods on time, and col- 
lected the amounts. They were all considered responsible 
for their contracts." 

The depositions of Francis Thomas, proving that he was 
Clerk of Laurens Superior Court, and had examined the 
docket thereof from the year 1820 to 1832, and found a case, 
brought by E. Warren to the April term, 1830, in favor of 
Lowe, Taylor & Co. vs. Hardy Griffin, which is marked dis- 
missed at plaintiff's cost ; that he finds a case of Assumpsit, 
brought to the April term, 1832, by Tracy & Butler, in favor 
of Lowe, Taylor & Co. vs. Hardy Griffin, in which judgment 
was confessed at the October term, 1832, returnable to April 
term, 1833, in favor of Lowe, Taylor & Co. vs. Hardy Griffin, 
for principal $914 24, interest $70 37, and cost $8 37 ; that 
these cases and this fi.fa, were against Griffin individually, 
and not as executor, as appears from the dockets. A tran- 
script from the docket accompanied the depositions. 

The depositions of William Hair, proving that he removed 
from Laurens county in 1815, and did not leave a debt behind 
him; that he did not owe the estate of Benjamin Smith 
one cent, and if the executor returned a note or fi.fa. against 
witness it was not true, but fraudulent ; that there was a 
William Hare residing in Laurens county when he left there. 

A transcript and statement from the Bench and execution 
dockets of Laurens Superior Court, duly certified to by the 
Clerk, of the case Q.ndfi.fa. mentioned in Thomas's testimony, 
before given. 

Couasel .for complainant excepted to the decision of the 
Court, repelling said testimony offered and rejected as afore- 
said. 

Counsel for complainant requested the presiding Judge, 
amongst other things, to charge the jury : *' That if an exec- 
utor or administrator sells the effects, assets, or choses in 
action belonging to the estate of his testator, or intestate, 



MACON JANUARY TERM 1861. 97 

Smith vs. Griffin. 

without an order of Court, or other lawful authority to do 
so, bat sells them at private sale, at a reduced price, he is 
chargeable with their nominal value/' 

This charge, the Court refused to give, and complainant 
excepted. 

At the request of counsel for the defendant, the Court 
charged the jury, amongst other things, as follows, to-wit : 

" That the inventory of the choses in action, promissory 
Dotes and books of account of Benjamin Smith, deceased, is 
merely prima facie evidence to charge the executor with 
them, as assets, — it may not be sufficient of itself, but that 
the evidence ought to go further, and show the money to 
have been collected, or was collectable. 

'' That the returns of the defendant having been allowed 
by the Court of Ordinary of Laurens county, and adjudged 
by a Court of competent jurisdiction, are prima fade evi- 
dence of the correctness of the returns, and will be conclu- 
sive, unless reversed, or impeached for fraud or other cause. 

" That the return of certain notes and accounts as desper^ 
ate, cannot be impeached by evidence, simply of the sol vency 
of the debtors ; that complainant must not only show the 
debts to have been solvent, but that they were collectable, 
and that without such evidence, the judgment of the Court 
of Ordinary, allowing said accounts and notes as desperate, 
is conclusive. 

•* That whilst the appraisement is prima fade evidence of 
the value of personal property, it is not conclusive ; that if 
the evidence shows any of the goods and chattels to have 
8oId for less than the appraised value, and the sale was a fair 
and hona fide one, the defendant is only chargeable with the 
amount of such sales.'' 

Coaosel for complainant excepted to the charges thus 
given. 

The jury returned a verdict in favor of the defendant. 

Counsel for plaintiff in error, asks a reversal of the judg- 
ment, on the ground : 

1st That the Court erred in rejecting the depositions of 
Sears, Bailey, Fuqua, Thomas Hair, and the certified eze*- 

7 



98 SUPREME COURT OF GEORGIA. 

Smith V8, Griffin. 

plification of the dockets of the case of Lowe, Taylor & Co. 
vs. Hardy Griffin. 

2d. That the Court erred in charging, as requested by 
counsel for defendant, and in refusing to charge, as requested 
by the complainant's counsel. 

Henby Morgan for plaintiff in error. 

Strozier and Irwin & Butler contra. 

By the Court — ^Jenkins, J., delivering the opinion. 

The first exception appearing in this record is to the ex- 
clusion, by the Court below, of the testimony of the witness 
Sears, offered by the plaintiff. His evidence is certainly not 
very clear or very definite ; but it does throw some light upon 
a transaction now enveloped in obscurity, which should have 
appeared, clearly and fully, just as it oo^curred in the returns 
of the defendant as administrator, to the Ordinary. It may 
be well to say here, at once, that the peculiar circumstances 
of this case seem to demand a relaxation of the rules of evi- 
dence, or rather, that conformity to the rule allowing the ad- 
mission of the best evidence of which the nature of the case 
admits, inevitably lets in such as is not of a very satisfactory 
or conclusive character. It is now more than forty years 
since the transactions brought under investigation had their 
inception. The plaintiff was then a mere child, quite inca- 
pable of comprehending such of them as may have transpired 
in his immediate presence, and scarcely able to remember 
what may have been witnessed, but notcomprehended. Many 
persons who were either parties to, or witnesses of, the trans- 
actions have passed away, whilst the memory of others has 
lost its grasp of the facts. Charity, perhaps, requires us to 
concede that much of the vagueness and uncertainty of de- 
fendant's answer is attributable to his own forgetfulness of 
things done by himself, after the lapse of so many years. 
We cannot, however, indulge a charity so abounding, as to 
excuse him for having failed to perform a duty required by 
the law of the land, in terms so simple as to be easily com* 



MACON, JANUARY TERM, 1861. 99 

Smith vs. Griffin. 

prehended by the poorest capacity — ^the duty of making to 
the proper aathority, to be recorded and preserved as a per- 
petaal testimony thereof, annual returns of his receipts and 
expenditures as executor. When we come, in a more appro- 
priate connection, to consider that point, it will be seen how 
that duty has been performed. It is enough to say, here, 
that it has in part been so done, and in part so omitted, as 
to envelojf the history of this case in a cloud of obscurity, 
and as to render the administration of full and equal justice 
a hopeless attempt. This malfeasance and non-feasance, on 
his part, imposes on the Court charged with the quest afl;er 
truth, the necessity of admitting every thing not in absglute 
violation of the rules of evidence that may tend, even re- 
motely, to elucidate the case. 

Of this character is the testimony of Sears. It gives some 
clue to the amount of the debt due the estate of defendant's 
intestate, to which he testifies, and to the practicability of 
realizing it by the exercise of due diligence. It does contain 
statements which a jury might and should well and carefully 
oDDsider, in the absence of clearer proof, which it was the 
boanden duty of defendant to furnish. To exclude it from 
them, therefore, was error. So of the testimony of Bailey, 
the rejection of which furnishes the ground of the second 
exception. It tends to show the pecuniary condition of the 
defendant at the time he entered upon this administration-— 
its apparent improvement shortly afterwards — his more lib- 
eral style of living, and freer expenditure, and his probable 
sources of revenue. It has a bearing upon the question 
raised by a charge in the bill, that he converted to his own 
Qse the assets of the estate, which he is now called upon to 
account for, and should have been admitted. We are con- 
strained to put our judgment upon the exception to the re- 
jection of Fuqua's testimony, hypothetically. This witness 
testifies that he *^ was acquainted with all those men ; witness 
was a merchant ai the timey and sold them goods on time, and 
collected the amounts. They were all considered responsible 
for their contracts.'' Who ^^ those men" were, what *'the 
^me," and what their relation to the estate, neither appears 



100 SUPREME COURT OF GEORGIA. ^^.^; 



Smith V8, Griffin, 



^<Cl»i 



from the witness' answers nor the record. DoubtleS^fhe 
names of *' those men" and '' that time" are disclosed in the 
question he is answering, but the questions in all cases of 
depositions, taken under commission, are omitted in the brief 
of evidence. We can, then, only say, that if upon reference 
to the question or questions which elicited the answer above 
quoted, the names of persons are disclosed who are debtors of 
this estate, and whose debts were returned by the defendant 
as desperate, or were not accounted for, and if **</krf titncy^ 
of which he speaks, should fall within the range of defend- 
ant's administration, the rejection of that testimony was error. 
Bo iQUch of Fuqua's evidence as relates to the general im- 
pression that defendant was administering the estate badly, 
and that his conduct was not that of an economical executor, 
was properly rejected. The testimony of the witness Thomas, 
and the transcripts from the dockets, as testified to, and as cer- 
tified by him, were, we think, erroneously ruled out by the 
Court, because they appear to furnish the best evidence the 
nature of the case, as exhibited by him, admitted of. The 
testimony of this witness, we think, brings the transcripts 
rejected within the operation of the Act of 21st Dec., 1819, 
Cobb's Digest, 272, and the Act of 21st Dec, 1830, Cobb's 
Digest, 273. 

The testimony of the witness Hair (without other evidence 
showing that he had been a debtor of this estate,) was prop- 
erly rejected, because he testifies that he owed the estate of 
Benj. Smith nothing, and that there was residing in the 
county of Laurens when he leil there, another William Hair, 
or Hare. ' 

2. The next exception assigns error in the refusal of the 
Court to charge, as requested by plaintifi''s counsel, ''that, if 
an executor sell the efiects, assets, or choses in action of the 
estate he administers, without an order of Court, or other 
lawful authority, at private sale and at a reduced price, he is 
chargeable with their nominal value." We do not readily am- 
derstand what the nominal value of any of those subjects of 
administration is, except choscs in action. We presume, the 
amount of indebtedness appearing upon the face of a chose in 



MACON, JANUARY TERM, 1861. 101 

Smith vs. Griffin. 

action, is the " nominal value " referred to. But what is the 
nominal value of a mule, of a bolt of calico, or of a bedstead ? 
The true rule in the case made in the request, is that he is 
liable for the real value, if that can be ascertained, and is 
greater than the sum for which the thing was sold. In the 
case of a chose in action, if the real value cannot be ascer- 
tained, then tbe liability would be either the amount of sale, 
or the sum apparent upon the face of it, as the one or the 
other might be the larger sum. 

3. The next exception assigns as error, the following charge 
given by the Court, at the request of the defendant's counsel, 
viz: "That the inventory of the choses in action, promissory 
notes, and books of account of Benj. Smith, deceased, is 
merely prima facie evidence to charge the executor with them 
as assets ; it may not be sufficient of itself, but that the evi- 
dence ought to go further and show the money to have been 
collected or collectable." 

This charge is obnoxious to the objection of inconsistency. 
The first clause assigns to the inventory the character of 
prima facte evidence, to charge the executor, whilst the lat>- 
ter clause conveys the idea that it is not sufficient of itself, 
and that it is incumbent on the party seeking to charge the 
executor, to go further, to offer more stringent proof. We 
understand the effect of prima facie evidence to be, to shift 
the cnus — to establish the fact in issue, unless rebutted by 
the party sought to be affected by it. But to say of evidence 
that is insufficient, that the party adducing it should have 
produced more, is to say that it does not shift the oni^-^that 
it is not prima facie evidence of the fact in issue. The in- 
struction given the jury '^ that it was necessary for the com- 
plainant to show that the money was collected or collectable," 
was particularly objectionable, as applied to this case, and 
this is the form given to it — a rule to be applied to this 
estate — ^not a general rule of law. Conceding to the Court 
below, for argument, that the general rule is as declared in 
the chai^, we should hold that this case is an exception. 
Looking to the inventory, as exhibited in the transcript, we 
find no schedule setting out the names of debtors, and the 



102 SUPREME <X)URT OF GEORGIA. 

Smith va» GriflSn. 

sum due by each^ and the class to which the debt belonged. 
But at the foot of the inventory and appraisement of chattels, 
•re two items, one of which specifies the aggregate of debts 
by promissory notes, and the other the aggregate of debts in 
open account. The inventory does not exhibit the name of 
any debtor, nor the amount of any debt. When this plaintiff 
arrived at years of maturity, he could not, by recourse to the 
records of the Ordinary, acquire any specific information 
whatever on these points from the inventory — ^and now, that 
he resorts to the conscience of the defendant, he is not assisted. 
There is no inventory, there are no uncollected notes produced, 
no schedule of them exhibited, no books of account produced. 
The annual returns show no money collected. Under this 
state of things, with these shamefully meagre returns, how 
is this plaintiff to go back to the days of his early childhood 
and '^show that the money was collected, or collectable"? 
There was error in this charge. 

4. Again, the plaintiff in error excepts to the charge of 
the Court, given at the request of defendant's counsel, in the 
language following: ^^ That the returns of the defendant hav- 
ing been allowed by the Court of Ordinary of Laurens 
county, and adjudged by a Court of competent jurisdiction, 
are prima fade evidence of the correctness of the retnrns 
used, will be conclusive, unless reversed or impeached for 
fraud or other cause." 

This is, undoubtedly, the general rule of law, as applied to 
returns made in conformity with law, and upon the face of 
which there is no reason apparent for suspecting that they 
are illegal or fraudulent. If, for example, the Ordinary 
should pass and record accounts not verified, or containing a 
return of large expenditures wholly unsustained by vouch* 
ers, surely such returns would not make a prima fade case 
for the executor or administrator returning them. By the 
Act of 18th Dec., 1792, Cobb's Dig., 306, executors and 
administrators are required, annually, to render to the Re- 
gister of Probates, (Court of Ordinary,) a just and true 
account, upon oath, of the receipts and expendUwea of such 
estates, the preceding year. By reference to the returns, as 



MACON, JANUARY TERM, 1861. 103 

Smith vs. Griffin. 

certified and exhibited in evidence, we find that, having qual- 
ified as executor, in the early part of the year 1819, the 
defendant made, after the return of the inventory and 
appraisement, but six returns, as follows : Three returns of 
expenditares, made severally in the years 1820, 1824 and' 
1828. A return of sales made in 1821, on twelve months^ 
credit, not verified, and the proceeds never brought into his 
annual returns. A return of a cash sale, made in 1 823, not 
verifiedj amounting to 980 25, which is the sole acknowledg- 
ment^ in all his returns, from first to last, of cash received. 
Lastly, a return, made 6th September, 1825, of desperate 
debts. 

Thus, it is seen, there are but three returns, strictly of the 
description denominated '^ annual/* with an interval between 
the first and the last of eight years. He did not, then, make 
annuo/ returns of receipts and expenditures. Again, it 
appears that in neither of th'ese three returns is there 
acknowledged the receipt of one cent of money. Whilst 
there are three returns of expenditures, there is no return of 
recdpts, save the unverified account of a cash sale, above 
mentioned, which, for lack of verification, is ill^al. We 
do not question, that in the course of a long administration, 
there may be one or more returns, entirely true and legal, 
showing only expenditures. But what shall be said of an 
admbistration of an estate, the inventory of which shows 
personalty, amounting to $17,344 99, (besides several hun- 
dred acres of land,) commenced more than forty years since, 
never closed to this day — in which there have been but three 
returns of expenditures and none of receipts. 

Again, the inventory shows that he rendered to the 
appraisers an aggregate of debts due to the estate, of $9,621- 
97. Hore than six years after the date of this inventory, (a 
l^pse of time sufficient for the collection of all collectable 
debts, and for the bar of the statute of limitations to have 
attached to all debts due at that time,) he made a return of 
desperate debts, amounting to $2,123 98. What has become 
of the remainder of $7,500 ? The presumption of law- is 
that this remainder was collected ; but when collected, how 



/ 



104 SUPREME COURT OP GEORGIA. 

Smith V8. Qriffin. 



much interest collected upon it? Why not returned as col- 
lected ? It is impossible to resist the conclusion, that these 
returns are illegal — are fraudulent. They stand before the 
Court self-impeached. They make no prima facie case for the 
executor, they are to be taken most strongly against him; 
they call for the opening widely of the door for the admis- 
sion of evidence in behalf of the plaintiff, and the stringent 
administration of the law against the defendant. We take 
it for granted that the attention of his Honor, the Judge of 
the Court below, was not called to the character of these 
returns, and that, in the absence of such a call, and in the 
hurry of a nisi prius trial, he had not (enveloped as they 
are in a terribly voluminous record,) found opportunity to 
scrutinize them. With more enlarged privileges of time and 
opportunity, we have felt ourselves severely tasked by the 
investigation, and doubt not that, upon careful scrutiny, he 
will arrive at our conclusion. At all events, we are con- 
strained to hold that there was error in this charge, as applied 
to these returns. > 

5. Error is further alleged against the following charge : 
^' That the return of certain notes and accounts, as desperate, 
cannot be impeached by evidence simply of the solvency of 
the debtors; that complainant must not only show the debts 
to have been solvent but collectable ; and that without such 
evidence, the judgment of the Court of Ordinary allowing 
said accounts and notes as desperate, is conclusive." 

We think this charge goes rather far in favor of the de- 
fendant. It should, on this point, have been to this effect : 
^' The judgment of the Court of Ordinary, allowing a schedule 
of desperate debts, is prirna facie evidence in favor of the 
defendant, and of course conclusive, unless rebutted. But it 
is competent for the plaintiff to prove in rebuttal that the 
debtors named in the schedule were solvent, and that, by the 
use of due diligence, payment might have been enforced ; 
that such evidence, if credible, was sufficient to shift the 
aniM, and require the defendant to show why these debts were 
not collected ; and that it was the province of the jury to 
determine, from all the evidence, whether or not the defend* 



MAOON, JANUARY TERM, 1861. 105 

Beall vs. Leverett, adm'r. 

act should be charged with any debts standipg in that class. 
If there be satis&ctory evidence of the solvency of a debtor, 
daring several consecutive years, a debt due by him in the 
first of those years, can scarcely be desperate. Such evidence 
shotdd have been received, and the question of liability re* 
fared to the jury. 

"For the reasons assigned, we have no hesitation In reversing 
the judgment of the Court below, and sending the case back 
for a rehearing. 
Judgment reversed. 



Beall vs, Leverett, Adm'r. 

1. The Transferree of a Promissory Note, payable one day after datCi to 
which, on sait brought, a plea of failure of waat of consideratioa is 
interposed, is not, in the absence of all proof on the subjectf entitled 
to the benefit of the presumption that he took the note before due, and 
without notice ; such holder does not occupy the position of an inno- 
cent purchaser. 

2. A new trial will not be granted, on the ground thai the verdict was 
sgtunst the evidence, when, from the facts in proof, the jury might 
reasonably have arrived at a conclusion that will support the verdict. 

Assumpsit, in Webster Superior Court. Tried before 
Jadge Perkins, at the September Term, 1860. 

This was an action brought by Erasmus T. Beall, as bear- 
er, against Martin M. Leverett, as administrator of John 
K. Leverett, deceased, to recover the amount of a promissory 
note, made by John R. Leverett, in his lifetime, payable to 
H. W. Jernigan, or bearer, dated the 13th of December, 
1848, and due one day afler date, for two hundred dollars. 

The defendant resisted the plaintiff's recovery on the 
groand that the note was given in consideration of an agree- 
ment, on the part of Jernigan, to wait on, physic, and try to 
care the said John R. Leverett of a cancer with which he 
^aa at the time a£9icted ; that said Jernigan was to continue 



106 SUPREME COURT OF GEORGIA. 

Beall V8, Leverett, adm'r. 

these efforts to cure during the lifetime of said John B. Lev- 
erett, unless a final cure was sooner effected ; said Leverett, 
in the meantime, paying said Jernigan for board and medi- 
cines ; that said John R. Leverett did pay for the board and 
medicines furnished, but Jernigan wboflj failed to perform 
his part of the agreement, and that the consideration of the 
note had wholly failed. 

The defendant also pleaded a partial failure of the oonsid- 
sideration of said note. 

Ou the trial of the case in the Court below, the plaintiff 
introduced and read, in evidence, the note sued on, and closed 
his case. 

The defendant proved, by the depositions of Mrs. Jane 
Foreman : That she was boarding at the house of Henry W. 
Jernigan, in Glenville, Alabama, in December, 1848, for the 
purpose of being cured by Jernigan of a cancer with which 
she was then afflicted, and that she heard Jernigan say that 
John R. Leverett was to pay him for board and medicines, 
and give him four hundred dollars, if Jernigan cured him of 
the cancer under which Leverett labored, and that if he failed 
to cure him, he was to attend to him during life for two hun- 
dred dollars; that Leverett died in the year 1850, and she 
has heard that Jernigan is dead, but does not know it to be 
true. 

The defendant also proved, by the deposition of Clement 
A. Chatham : That, as a physician, he attended John B« 
Leverett in his last sickness ; that said Leverett died of a 
cancerous affection of the inguinal glands, primarily located 
in the penis ; that the patient detailed to the witness the fol- 
lowing history of the case, to- wit: that some months before 
the visit of witness the cancer made its appearance in the 
glands of the penis, but that, for the last few months, those 
glands had continued to enlarge, and that they had been en- 
larged previous to the amputationof the affected member; 
that the witness first found the glands in a state of ulceration 
and suppuration, and they so continued until they caused his 
death from hemorrhage ; that the attendance of witness upon 
said Leverett was after he returned^ from Alabama, and 



MACON, JANUARY TERM, 1861. 107 

Beall vs. Leverett, adm'r. 

that Martin M. Leverett^ as administrator, paid the bill of 
the witness ; that, for some two months previous to his death^ 
the witness frequently visited said Leverett, for which he 
made no charge, as he felt certain he must die ; that said 
Leverett was at his own residence, in Stewart county, all the 
time witness attended him, and that he died at his residence. 

The defendant also proved by Elias Beall : That he heard 
a conversation between Erasmus T. Beall and John R. Lev- 
erett, in which Beall told Leverett that he must not think 
hard of his suing him, for that Cachet had sent the note over 
to him for collection ; that Leverett said he had been to see 
Jernigan in AIabam,a to be cured of a cancer ; that he had 
given Jernigan his note for two hundred dollars ; had paid 
him some money, and was to pay him more provided he 
cared him of the cancer. 

The testimony then closed, and the presiding Judge 
charged the jury, who returned a verdict for the defendant. 

Council for the plaintiff then moved for a new trial, on the 
grounds following, that is to say : 

1. Because the verdict of the jury is contrary to the fol- 
lowing charge of the presiding Judge : " That in order for 
the jury to find for the defendant, provided he has made out 
his defence, they must be satisfied from the evidence that 
either said Beall or Grachett came into the possession of the 
note after it became due, or if he took it before due, then, in 
that case, that he took it with notice of the &ilure of the 
consideration in whole or in part." 

2. Because the verdict is contrary to the following charge 
of the presiding Judge, that is to say: ''That if the jury 
believed from the evidence, that in consideration that Jerni- 
gan would treat and endeavor to cure Leverett of a Gancer, 
and would board the said John R. Leverett, and furnish 
him with medicines, that he, Leverett, was to pay Jernigan 
$200 certain, and was to pay him for his board and medi- 
cines, and the further sum of $200 if he effected a cure, and, 
if necessary, Jernigan was to practice upon him the balance 
of his life, and that the note sued on was given in part per- 
formance of such contract — then, to enable the defendant to 



108 SUPREME COURT OP GEORGIA. 

Beall vs. Leverett, adm'r. 

make out his defence, be must make it appear that said Jer- 
nigan failed, in whole or in part, to perform his part of the 
contract. But if it appeared that Jernigan was not in fault, 
but that Leverett fitiled to apply to him for medical treat- 
ment, pursuant to the contract, then Leverett was in fault, 
and the defence could not be sustained/' 

3. Because the verdict was contrary to the following 
charge of the presiding Judge, to-wit : '^ That if it should 
appear from the evidence, that Jernigan was to treat and 
endeavor to cure Leverett at the residence of Jernigan, in 
Glenville, Alabama, then Jernigan was not bound to visit 
and treat said Leverett at his residence in Stewart county, 
Georgia." 

4. Because the verdict of the jury was contrary to the evi- 
dence, decidedly and strongly. 

5. Because the verdict was contrary to the law. 

The motion for a new trial was overruled, and the writ of 
error is prosecuted in this case to reverse that decision of the 
presiding Judge. 

B. S. WoRRiLL for plaintiff in error. 

E. H. Beall for defendant in error. 

By the Oourt. — Lyon, J., delivering the opinion. 

The only question made in this case is, whether the verdict 
is contrary to law and the evidence. 

Counsel for plaintiff in error insists that it is : 

1. Because there is no evidence but that the plaintiff, or 
those under whom he holds, was a bona fide holder of the 
note without notice of the want of consideration set up by 
defendant. 

This position assumes that the onus lies on the defendant 
to show that the plaintiff todk the note after its maturity. 
Ordinarily, that is when the note has some time to run from 
execution to maturity, this is true ; but we do not think that 
principle applies to notes like this, due one day after its 
date; for the time run is so short that it is not probable 



MACON, JANUARY TERM, 1861. 109 

Beall vsj LeTerett, adm'r. 

that it should be put into circulation before maturity, at least 
not sufficiently so to raise such a presumption in favor of 
the holder. Notes given due and payable at the time of their 
execution, or at one day after date, do not belong to that 
class of paper intended for negotiation and circulation for 
commercial purposes, in which all the presumptions are in 
favor of the holder, in order to protect innocent purchasers, 
and to encourage and foster their circulation ; but they are 
given more as an evidence of indebtedness by the maker to 
the payee. In all such paper there is no intention by the 
maker, or expectation on the part of the payee or holder, that 
the note will be paid on the next day when it becomes due 
and payable. We cannot, therefore, hold that the verdict 
was contrary to the evidence in this particular. If the plain- 
tiff had shown affirmatively that the note had passed bona 
fde from the payee before it was actually due, and without 
any notice of the defence, or the purpose for which the note 
was given, we are inclined to think, though not positive even 
as to that, that he would have been protected from this 
defence. 

2. Because there is no evidence but that the payee, Jemi- 
gan, fully performed his part of the contract, or offered to do 
BO, and that, therefore, the verdict was against law and the 
evidence. 

To dispose of this position, it is necessary to advert to the 
facts. Jernigan, the payee, residing in the State of Ala- 
bama at the date of the note, professed to be able to cure 
John R. Leverett, the maker of the note, and the defend- 
ant's intestate, of a cancer, with which he was ^afflicted at that 
time — ^at least, he offered to do so — and agreed to board the 
intestate and furnish medicines for that purpose, whilst he 
was treating the disease; and in consideration of this promise 
and agreement on the part of Jernigan, the intestate promised 
to pay Jernigan the sum of $200, which was to be paid cer- 
tainly, whether a cure was effected or not, and the additional 
sum of $200, in case a cure was effected ; besides this, Lev- 
wett was to pay for 'his board and the medicines furnished. 



110 SUPREME COURT OF GEORGIA. 

Beall V8, Leverett, adm^r. 

and Jernigan was to attend to Leverett as long as he livedi 
for tRe $200. 

It is not doubted but that the note was given upon this 
consideration; it was given at the time the contract was 
made, in December^ 1848; there were no other dealings 
between the parties. If the fact that this contract formed 
the consideration of the note had been denied, the juiy woald 
have been fully authorized, from the facts, in the absence of 
all other proof, to have so found. But was the note given 
in liquidation of the sum to be paid certainly, or for that 
dependant on a cure? The only evidence upon the subjects- 
is the declarations of the maker, as testified to by Elias Beall, 

' and that went to the jury as evidence, that he, Leverett, 
had been to Jernigan to be cured of a cancer ; that he had 
given said Jernigan his note for $200; thai he had paid him 
some monet/y and was to pay him more provided he cured him 
of the cancer, A fair interpretation of this statement is, 
that although he, Leverett, had given to Jernigan his note 

• far $200, on account of this contract, yet he was not to pay 
him any more money on that account, unless Jernigan sno- 
oeeded in curing him of the cancer. Considering this as a 
fact, and the jury had a right to so consider, if they so 
believed, this note was not given for the sum certain, but the 
sum conditional, and, in that view, the verdict was not only 
not against, but with the evidence, aa no cure was ever made 
by Jernigan of the cancer. 

We frankly admit that the evidence is not very satisfac- 
tory, but we cannot say that the verdict is so much against 
the evidence as to require us to interfere with the discretion 
of the Court below in refusing a new trial ; and, as this is 
the only question in the case, the judgment of the Court 
below must be affirmed. 
Judgment affirmed. 



MACON, JANUARY TERM, 1861. Ill 

Gilliam vs. The State of Georgia. 



GiLLiAH V8. The State op Geokgia 

1. UpoD a motion to enter np jadgment for a witness' fee, on an indict- 
ment, when the defendant had been convicted, and on which motion 
an issne has been made up and submitted to the jury for trial, the sub- 
poena under which the witness attended, with the endorsed affidavit 
thereon of the number of days in attendance, the distance traveled, etc., 
with an order of the Court approving the bill, and ordering it to be 
paid by the county treasurer, is sufficient proof, prima facie, under 
the statute, to authorize the motion to prevail. The same being a 
substantial compliance with the act regulating the collection of wit- 
neses' fees in criminal cases. 

2. In such case, when the defendant oflfers no proof in support of the 
grounds taken in his issue tendered, a verdict of the jury is unneces- 
sary ; the Court should withdraw the issue, and order the judgment to 
be entered. 

Motion to ester up judgment for witness' fees, in Dough- 
erty Superior Court, decided hy Judge Allen^ at the 
December Term, 1861. 

The facts and questions presented by the record in this 
ca£e are as follows : 

Joab J. Gilliam was convicted of an assault and battery, 
aod sentenced to pay a certain fine, and the costs of the pros- 
ecation. He paid the fine and all the costs, except the fees 
of the witnesses. Christianna Axon was subpcenaed as a wit- 
ness in said case, in behalf of the State, and when the pros- 
ecation terminated^ she made out an account against the 
county of Dougherty, for her attendance, under the sub- 
poena, twenty-six days, $25 ; and for traveling to and from 
Court, two terms, whilst she lived in the county of Calhoun, 
a distance of twenty -six miles from the place of trial, $6 45, 
and also for traveling to and from Court two terms, whilst 
8he lived in the county of Decatur, a distance of sixty miles 
from the place of trial, $16 45. This account was verified 
by the affidavit of the witness, made on the subpoena. Upon 
this showing, the presiding Judge passed an order : '^ That 
the amount of said account be taxed in the bill of costs, and 
that the county treasurer pay the same out of the county 
funds." 



112 SUPREME COURT OF GEORGIA. 

Gilliam vs. Tbe State of Georgia. 



At the June Term, I860, a rule nisi was taken, reciting 
the fon^oing facts, and that the Clerk had failed, by mis- 
take, or other cause, to tax in the bill of cost the fees due to 
said witness, and requiring the said Joab J. Gilliam to show 
cause why judgment should not be entered up against him 
for the costs and fees due to said witness. 

In answer to this rule, Gilliam alleged : That i\o witness 
residing out of Dougherty county, had ever been subpoenaed 
in said case ; that the witness charged more in said account 
than was due her, both for attendance and mileage; that she 
attended Court under subpoena in civil cases, and other State 
cases, and was entitled to pay only on one subpoena ; and 
that before he was discharged from custody by the sheriiT, 
he paid all the cost that was due from him in said case. 

The issue thus made up, was submitted to a jury at the 
December Term, 1860. 

On the trial of the case, the plaintiff read in evidence 
the bill of indictment, with the verdict and judgment thereon, 
and a receipt to the defendant for the fine, and all cost, except 
witness' fees; also, the subpoena, the account of witness, the 
affidavit verifying the same, and the order of the Judge 
directing the amount to be taxed in the bill of cost, and paid 
by the county treasurer, and closed the case. 

Counsel for defendant moved a judgment of non-suit against 
the State, which was overruled. The jury then returned a 
verdict for the State. 

The error assigned, is the refusal of the Judge to grant 
the non-suit moved for. 

Stbozieb & Smith for plaintiff in error. 

Warren & Warren for defendant in error. 

By the Court — Lyon, J., delivering the opinion. 

The plaintiff in error had been convicted of assault and 
battery in the Superior Court of Dougherty county, and 
fined $60 and costs of the prosecution. In entering ap 
judgment for the costs against him, the Clerk had n^Iected 



MAOON, JANX7ART TERM, 1861. 113 

Gilliam vs. The State of Georgia. 

to tax in the bill of costs the fees of a witness in said case, 
amounting to the snm of $74 45. 

This fact being made known to the Superior Court of 
Dougherty county, at the June Term, 1860, of that Court, a 
rule nisi was granted, calling on the plaintiff in error to show 
cause why judgment should not be entered up against him 
for the costs so omitted to be charged in the original judg- 
meot. 

Plaintiff in error, in answer, showed, for cause, various 
reasons why the rule nisi should not be allowed ; but, as 
none of them were relied on in the trial, it is unnecessary to 
notice them. 

Upon the answer, however, an issue was made up, and the 
parties went to trial, at the December Term, 1860. 

Counsel representing the mot^ion tendered in evidence the 
original subpoena to the witness, with an affidavit, endorsed 
thereon, of the witness of the number of days sh^ had been, 
in attendance on the Court as a witness, and the number of 
miles she had traveled to the Court, from the respective 
oouDties in which she resided at the time of her attendance. 
To this evidence plaintiff in error objected, which objection 
vas overruled by the Court, and the evidence went to the 
jury. The bill of indictment, with judgment of conviction, 
and an order of the Court passing upon the account of the 
witness, as sworn to on the back of the subpoena, and order- 
ing the same to be ta;ced in the bill of costs, and to be paid 
to the witness by the treasurer of the county funds, were 
^ put in evidence. When the evidence was closed, the 
plaintiff in error moved that the Court award a non-suit, 
meaning, we suppose, that the Court should, on this evi- 
dence, dischai^ the rule nisi. The Court refused the mo- 
tion, and the plaintiff in error complains that the Court 
erred. 

1. In allowing the subpoeoa, with the endorsed affidavit of 
tbe witness, to go to the jury as evidence. 

2. In refusing the motion to discharge the rule nisi, for 
want of sufficient evidence to make out a case against the 
plaintiff in error. These are the two questions made by this 

8 



114 SUPREME COURT OF GEORGIA. 

Oilliam vg. The State of Georgia. 

record. We will consider them together, as they will ferm 
but one, and that is, whether, upon the case, the motion to 
enter up judgment ought to have been allowed by the Conrt? 

The Act of 30th December, 1836, Cobb, 279, providing 
for the compensation of witnesses who are compelled to at- 
tend on Courts, as witnesses for the State, in counties other 
than those of their residence, enacts that such persons shall 
be entitled to the fees therein stipulated, upon making affi- 
davit before certain officers, ^' to the number of days he or 
she has been in attendance on the Court, and the number of 
miles traveled in going to and returning from the Courts ;" 
which affidavit, when countersigned by the Clerk of the Court, 
becomes a warrant on the county treasurer for the amount 
due on the same, to be collected out of the defendant for the 
use of th^e county, when the same has been paid out of the 
county funds, in case of conviction, in the same manner us 
other costs. 

To fix the liability of a convicted defendant for the wit* 
ness' fees, it is only necessaty to show a substantial com- 
pliance with the provisions of that act on the part of the 
witness and i^he Court. Here, the witness had made the 
affidavit required, and in the manner required. It does not 
appear that the same was countersigned by the Clerk of the 
Court ; if it was, then nothing more was necessary in the 
absence of rebutting proof; but it does not appear that the 
affidavit was not countersigned by the Clerk, and, in the ab- 
sence of affirmative proof of that fact, the presumption is 
that it was so countersigned. Whether the affidavit was so 
countersigned or hot is immaterial in this case, for after the 
affidavit was so made, it was submitted to the Court, who 
approved, and ordered the same to be paid out of the funds 
of the county, and taxed in the bill of costs of the case, and 
this, in the opinion of this Court, was a substantial compli- 
ance with the requirements of the act, and fixed the liability 
of the plaintiff in error for the payment of the same. Of 
course, the plaintiff in error was not excluded thereby from 
showing that the affidavit was false, that she did not attend 
the stated number of days, or travel the distance charged, or 



MACON, JANUAEY TERM, 1861. 116 

Willet o«. Price. 

that she was a citizen of Dougherty, and therefore not enti- 
tled to so mach compensation ; and this was what he pro- 
posed to do, and for that purpose an issue was allowed him 
by the Court to be tried by a jury. 

2. But, as he offered no evidence to support his issue, the 
btervention of the jury was wholly unnecessary. The Court 
did right to refuse the motion to discharge the rule nisi; in- 
deed the Court ought to have made the rule absolute without 
submitting it to the jury, there being no evidence whatever 
offered by the plaintiff in support of this issue. 

Judgment affirmed. 



Willet vs. Pbice. 



1. Where one is served with summons of garnishment, under the attach- 
ment Act of 1S56, and fails to make answer at the first Term, and 
again at the second, until after judgment is had by the plaintiff on his 
attachment debt, and after judgment is given by the Court against the 
garnishee for the attachment debt, he being still in default, the answer 
coming in after this, although at the same Term, and on the same day 
in which judgment was rendered, comes too late to benefit the gar- 
niehee. The Court, under the circumstances, has no power to relieve 
him from the judgment so decided against him. 

Certiorari^ in Sumter Superior Court. Decided by Judge 
Allen, at the October Term, 1860. 

The record in this case exhibits the following facts, to-wit : 
John V. Price sued out an attachment against George A. 
Brown, returnable to the May TMrm, 1857, of the Inferior 
Court of Sumter county^ in which Asabel A. Willet was 
served with a writ of garnishment requiring him to appear at 
the said May Term, 1857, of said Inferior Court, then and 
there to answer, on oath, what he was indebted to, or what 
effects of the said George A. Brown, he then had in his 
hands, or did have, at the time of serving said summons of 
garnishment. The said Asabel A. Willet failed to appear 
at said May Term, 1867, and failed to answer said summ' 



116 SUPREME COURT OF GEORGIA 

Willet V8, Price. 

at said term. At the November Term, 1857, of the said 
Inferior Court, Price obtained a verdict and judgment against 
said Brown for $3,523 63, principal, with interest thereon 
from the 23d day of February, 1857. The verdict and 
judgment were obtained, in the forenoon, and after the same 
were obtained, the counsel of Price moved to enter up a 
judgment against the said Willet, as garnishee, which motion 
the Court then granted, and judgment was entered against 
said garnishee for the amount of the plaintiff's judgment 
against Brown, the defendant, inasmuch as the said gar- 
nishee was still in default, and had failed to answer said 
summons of garnishment. On the same day, but after said 
judgment against the garnishee had been rendered, the said 
Willet appealed in Court and filed his answer to said sum- 
mons of garnishment, in which he denied being indebted to 
the said George A. Brown in any manner, either at the time 
the garnish mefit was served, or at any time subsequent thereto ; 
and that the only effects of the said Brown that he then had 
in his hands, or that he did have at the time the summons 
was served, was a note on A. A. Danforth for $47 61 ; and 
some other notes eLudfi.fas, set forth in his answer, and all of 
which were in the hands of J. M. Coker and William Li. 
Johnson, arbitrators, and which were subject to the order and 
disposition of the Court. Immediately afler the filifig of 
said answer, the said Willet, by his counsel, made a mere 
verbal motion to the Court to set aside said judgment against 
the garnishee, upon the ground that the filing of said answer 
subsequently to the judgment, and during the Term, and 
before the jury was discharged, was a compliance with the 
requirements of law, which motion was then and there, at 
said November Term, 1857, overruled by the decision and 
judgment of the Court. The minutes of Court do not show 
the motion or the judgment pronounced by the Court tbereon. 
At the January adjourned Term, 1859, of said Inferior 
Court, counsel obtained a regular rule nm, calling upon the 
said John Y. Price to show cause why said judfgment should 
not be set aside and vacated, on the same grounds stated in 
the verbal motion aforesaid. This rule nm was regularly 



MACON, JANUARY TERM, 1861. 117 

Willet v$. Price. 

served apon the counsel of Price, and Price responded under 
oath to said rule nm, alleging the facts hereinbefore set forth, 
and upon the hearing of said rule nisi, and the said answer 
thereto^ the Court passed the following order, to-wit : 

" A rule nisi having been served on John V- Price, to 
ghow cause why said judgment should not be set aside, and 
the said John Y. Price having responded in writing under 
oath, which response is admitted to be true, it is ordered and 
adjudged by the Court that .the said rule niei be discharged, 
upon the ground, that the Court passed upon said motion at 
the November Term, 1857, and that the case has been deter- 
miaed by this Court, in which AsabeL A. Willet has acqui- 
esced for two ycars/^ This order and judgment was excepted 
to, according to law, and the case was carried by writ of 
cerUorariy to the Superior Court of Sumter county, and upon 
the hearing, was dismissed by the presiding Judge. This 
decision is the error complained of. 

S. C. ELA.M for the plaintiff in error. 

J. J. ScABBOROUGH and McCoy and Hawkins, contra. 

By the Court. — Lyon, J., delivering the opinion. 

John V. Price having prayed an attachment against 
Geo. A. Brown, returnable to the May Term, 1857, of Sum- 
ter Inferior Court, caused a summons of garnishment to be 
served on Asabel A. Willet, returnable to that term of the 
Court. To this summons Willet failed to make answer at 
the return term, and at the November Term, 1857, after the 
plaintiff in attachment, Price, had obtained judgment on the 
attachment against the principal debtor, Brown, the Court, 
on motion of plaintiff's counsel, gave judgment against the 
garnishee, Willet, for the principal and interest of the attach- 
ment debt, he having failed to make any answer up to 
that time. After the judgment was thus rendered by the 
Court, Willet, the garnishee, came in and filed his answer, 
denying indebtedness, etc., and moved the Court, verbally, to 
fiet aside the judgment rendered against him in said cause 



118 SUPREME COURT OF GEORGIA. 

Willet M. Price. 

whidi motion the Court refused. Willet took no further 
^ps.to relieve himself from this judgment^ or to enforce his 
motion to set aside the judgment, until an adjourned Term of 
the Inferior Court of Sumter county, held in Januaiy, 1859, 
when, upon the application of Willet, that Court granted a 
rule nim, calling on Price to show cause why the judgment 
should not be set aside, on the ground that he, Willet, at the 
same term, and on the same day on which judgment had 
been rendered against him, but afterwards, had filed his 
answer thereto, etc., to which rule nisi Price answered in 
writing, and, on oath, reciting the facts as stated above. 
Upon the coming in of that answer, Willet, by his coansel, 
moved to make his motion to set aside the judgment, abso- 
lute, which motion the Court refused, and discharged the 
rule nisi. To this judgment of the Inferior Court, Willet 
sued out a writ of certiorari^ and upon the hearing thereof 
before the Superior Court, that Court refused the application, 
and discharged the writ, and that is the decision complained 
of before us. 

The Attachment Act of the 4th of March, 1856-^Pam., p. 
29— enacts, that when the garnishee fails to appear and 
answer at the Term of the Court at which he is required to 
appear, the case shall stand continued until the next Term 
of the Court, and if he shall fail to appear and answer by 
the next Term of the Court, the plaintiff in attachment may, 
on motion, have judgment against him for the amount of the 
judgment he may have obtained against the defendant in 
attachment, etc. 

The garnishee was required to answer at the return term 
of the summons; having failed to do this, the law, for his 
benefit, allowed the case to stand continued until the next 
term, so that he might have the fullest time and opportunity 
in which to be heard in answer to the summons. , The next 
term comes, and there is still no answer, although the statute 
expressly provides that, unless the answer is made by that 
time, the plaintiff shall have judgment against him ; not only 
that, but the case is regularly called, tried, and judgment 
rendered, in strict compliance with the statute ; and after all 



MACJON, JANUARY TERM, 1861. 119 

Walker, ex* or, vs. Griggs. 

this, the garnishee appears and files his answer, without the 
dightest excuse for his not having filed it earlier. In the 
opinion of this Coart, the answer came too late to benefit 
the garnishee. The construction that we give this act is, 
that the answer must, at least, be made and filed before judg- 
ment is bad against the garnishee. Ailer the judgment had 
been prononneed, and the rights of the plaintiff in attach- 
ment fixed, by what right, or under what rule of law, could 
the Court have opened and set aside its own judgment, pro- 
nounoed in, strict obedience to the statute? We are at a loss 
to imagine on what principle the application is founded. 

If it be true that the garnishee Was not indebted to the 
defendant in attachment, nor had his effects in hand, as is 
stated in his answer, then the case is an exceedingly .hard! 
one; but it was brought on the garnishee by his continued 
and wilful n^lect of the plain and positive requirements of 
the statute ; and, from the consequences of such conduct, ^ 
this Court, nor any other, has the power to relieve him on 
the case made. 

Judgment affirmed. 



Walker, Ex'r, vs. Griggs. 

1. The anbaeqaent promise to take a case ont of the statute of limita* 
tions, mast apecify, or plainlj refer to the particular demand or cauae 
of action, to be renewed or created hj it. 

2. Where the promiae relied on refers to notes generally, without speci- 
fying amounts, dates, etc., the promise is insufficient. 

3. If the plaintiff, to identify the note sued upon, as the subject of the 
written promise, introduces other proof which foils to satisfy the jury 
OD this point, this Court will not interfere to control their finding, 
although the Court may be of the opinion that the aliunde testimony 
preponderated against the conclusion of the jury ; especially when the 
party sought to be charged is a surety, and the debt has been barred, 
as to him, for many years. 

Assumpsit, in Webster Superior Court. Tried before 
Judg? Pbrkins, at the September Term, 1860. 



120 SUPREME COURT OF GEORGIA. 

Walker, ex' or, 9s, Griggs. 

This was an action, brought by John H. Walker, as exec- 
utor of Joel Walker, deceased, against James Griggs, to 
recover the amount of a promissory note, made by James A. 
Merriwether, as principal, and James Griggs, as security, pay- 
able to the said Joel Walker, or bearer, dated the 23d of 
December, 1840, due the 25th of December next thereafter, 
for $2,653 52, with interest from date, if the principal should 
not be punctually paid. 

There were also counts in the declaration, alleging a new 
promise to pay the note, which new promise was embodied 
in certain letters hereinafter set forth. 

The defendant resisted a recovery by the plaintiff, on the 
around that the note sued on had been paid, and also that 
the plaintiff's cause of action, if any, was barred by the 
statute of limitations. 

On the trial of the case in the Court below, the following 
testimony was adduced, to-wit : 

Evidence for the Plaintiff. 

The original note, of which the following is a copy, with 
the credits thereon, all of which credits were proven to "be 
in the handwriting of James A. Merriwether, except the last 
one, which was proved to be in the handwriting of J. Adams, 
administrator of James A. Merriwether : 

" By the 25th of December next, we, or either of us, 
promise to pay Joel Walker, or bearer, twenty-six hundred 
and fifty-three 52-100 dollars, with interest from date, but, if 
the principal is punctually paid, the interest to be remitted. 

^^ James Merbiwktheb. 
" James Grigos, Security. 

" 23d December, 1840." 

^ ^'Beceived, $135.00, May 1,1845. 

"Received, $98.23, July, 1845. 

"Received, 0138.55, February 12, 1849. 

" Received, seven hundred and fifty dollars, May 28th, 
1851. 

" Received, of J. Adams, administrator of J. A. Merri* 



MACON, JANUARY TERM, 1861. 121 

^ 4. _. _ ._ ■■_J 1 I, ■!_■ 

Walker, ex' or, V8» Griggs. 

wether^ deceased^ the sum of fourteen hundred and fiftj-four 
29-100 doUarSy in fall of the amount decreed to be paid to 
this note, by said administrator, and in full of the estate in 
the hands of daid administrator ; said decree rendered at 
April Term, 1856, of Putnam Superior Court. 

John H. Walker, Adm^r. 
"October 1st, 1866.'' 

An original letter, of which the following is a copy, to-wit : 

Eatonton, Ga., February 6, 1857. 
" James Griggs, Esq.: 

" Dear Sir : Mr. John H. Walker not having come here 
as I expected, I have not seen him in reference to the note 
you left with me on Mr. Wesley Griggs to sell to Walker. 
I received your message, through Mr. Gatewood, to sell the 
note to any one else, and not wait for Walker. I saw Mr. 
Cnllen Beed; he may take it at 10 per cent off, if he can ^ 
raise the money — promised to iBce me again about it. If he 
will take it at that rate, it will be about the best that I can 
do for you. Nothing definite having been done by you in 
reference to paying the notes, Mr. Walker holds the late 
Jodge Merriwether and you as his security. I thought it 
best to write to you about the same, before they were put in 
suit The decree passed at last September Court, directing 
what amount was to be paid by me as administrator of Judge 
Merriwether on said claims, in full of all the estate of Judge 
Merriwether in my hands — the balance falls on you. The 
papers will have .to be sued, if a definite arrangement is not 
shortly made to prevent it. I will write to Mr. Walker to- 
day. How would it suit you to pay the note on Mr, Wes- 
ley Griggs on these notes, and give your note for the balance, 
and get indulgence from Walker for the balance, and also 
get him to indulge you on the fi.fa.f Or, if Walker is wil- 
ling — and I think he ought to be — for you to give your note 
for the unpaid balance on these notes, on which you are secu- 
rity for Judge M., and give you further indulgence. As it 
is, I feel bound to write to Walker about the notes, and see 
what direction he will give in the business. If you and he 



122 SUPREME COURT OF GEORGIA. 

Walker, ex' or, vt. Grsggi. 

had met here, you might have made some arrangement aboot 
these papers, but, he not coming, and yon leaving before the 
business was adjusted, leaves me only where Walker pat me 
when he desired the notes to be sued for the unpaid balance. 
Be pleased to answer this on receipt of it that I may know 
what to depend upon, otherwise, unless Walker gives a differ- 
ent direction, the papers will have to be put in suit. I hope 
it will meet Walker's views to give you further indulgence, 
but that is between you and him. He wanted the papers 
sued to March Court next, for the unpaid balance, and hence 
I write, in order to know what shall be done. 

" Respectfully, J. Abams." 

An original letter, of which the following is a copy, to- wit: 

"Preston, 10th February, 1856. 
" J. AdamSy Esqr,: 

" Deak Sib : I have just received yours of the 6th. I 
regretted very much my not seeing Mr. Walker in Macon. 
He had just lefl. I wrote to him from there to be certain 
to meet me in Eatonton at March Court, that I was very 
anxious to see him, and try to make some arrangements with 
him in the notes of Judge Merri wether, without suit;. I be- 
lieve I can give him satisfaction without suing, for I am 
truly tired of paying cost and being soed. I wonld rather, 
greatly, settle the matter without further expense. The money, 
raised from the note on Wesley, that is in your hands, will 
all be paid to John H. Walker's claims ; but I have prom- 
ised Wesley that the last note shall go to the payment of the 
fi.fa. that is open against him, which I believe to be jost. 
I, perhaps, will bring some money with me when I come to 
Putnam; if so, it will be paid on the Merri wether note. I 
will pay as fast as I can, without suit, you may rely on it. 
Write to Walker, and try to have the receipt for Carswell 
& Floyd's note credited on the Branham & King^. fa.; thus, 
there will be more money to spare for the Merriwether notes. 
Please ascertain what is due on that ^. /a. against I come up. 
Mr. Davis has Mr. Walker's receipt for the note. Do what 



MAOON JANUARY TERM 1861. 123 

Walker, ex' or, tw. Griggs. 

joa can fer me, and it will be highly appreciated bj a friend. 

Let me hear firom you. 

" James Gbigqs/' 

The Acts of the General Assembly of the State of Geor- 
gia, showing that the name of Kinchafoonee county was 
changed to that of Webster, and that of the town of Mcin- 
tosh to that of Preston, on the 2l8t of February, 1856. 

James J. Scarborough testified : That, on the trial of this 
case once before, James Griggs, in response to a notice to 
produce the letter of J. Adams to him, dated 6th of Febru- 
ary, 1856, testified that he never received a letter of that 
date, and had never received but one letter from said Adams 
on the subject of the Merriwether notes, and that was dated 
6th of February, 1857, to which the letter sued on was in 
reply. 

Here the plaintiff rested. 

EVIDENCE FOR THE DEFENDANT. 

An original note, of which the following is a copy, to-wit: 

" $500. By the 26th December next, we, or either of us, 

promise to pay Joel Walker, .or bearer, five hundred dollars, 

for value received, with interest from date. 

'' J. A. Merbiwethek, 

" Jas. Griggs, Security. 
"March 19th, 1851." 

On this note the following credits were endorsed, to-wit :' 

Paid, by J. Adams, as administrator of Merriwether, 
$206.52, in fiill of its pro rata share of the assets in his 
hands. 1 October, 1856. 

Paid in full by James Griggs. 16 March, 1857. 

A vnit of Jieri faciaSy issued from the Superior Court of 
Putnam county, in favor of Henry Branham and Jesse King 
against James Griggs, dated the 2d of October, 1846, and 
founded on a judgment obtained on the 25th of September, 



124 SUPREME COURT OF GEORGIA. 

Walker, ez'or' vs, Griggs. 

1846, for $3,995.47, principal ; $239.71 interest up to the 
judgment, and $7.37^ for cost. 

On said fi, fa. the following entries and credits were en- 
dorsed, to-wit: 

'^ We assign, transfer, and give control of this fi. fa. to 

Joel Walker, for value received, without recourse on us. 

" Henry Branham, 

'' Jesse King. 
" 17 March, 1847." 

'^ Received, of James Griggs, four hundred and seven dol- 
lars and 62 cents on this fi. fa. 

S. A* Wales, Prff^s Attorney. 
"17th March, 1847." 

" Received, 1st March, 1853, five hundred dollars on this 
fi'fa. 

" Received, of James Griggs, by the hand of J. Adams, the 
sum of one thousand dollars, in part payment of this fi. fa. 

"May 1, 1854. John H. Walker, 

Ex'r of Joel Walker." 

" Received of the within fi. fa., four hundred and nine 
38-100 dollars, this January 3d, 1855. 

"John H. Walker, 
"Ex'r of Joel Walker." 

" Received of the within, sixteen hundred and fifly dol- 
lars. January 10, 1856. 

" Received of James Griggs, defendant, the sum of nine 
hundred dollars in part payment of this fi. fa. 

"J. Adams, 
" Att'y for J. H. Walker, Ex'r." 
"March 20, 1856. 

"Received of defendant, James Griggs, by the hand of C. 
D. Pearson, four hundred and fifty-two dollars on this fL fa. 

"J. Adaics, 
Att'y for J. H. Walker, ExV." 
"March 22d, 1856. 



MACON, JANUARY TERM, 1861. 125 

« Walker, ex' or, V8. Griggs. 

" Received of James Griggs, hereon, the sum of five hun- 
dred dollars. January 28, 1857. 

"J. Adams, 
" AttV at I^w of J. H. Walker, Ex'r." 



"Received of James Griggs, the sum of fifteen hundred 
and seventj-one dollars and 65 cents, a part of the money 
arising from the sale of a note by me, for him, on Wesley 
Griggs, to Alexander Reid, payment in full of the balance 
due on this fi. fa. March 16, 1856. 

"J. Adams, 
"Att'y at Law for John H. Walker, 
" Ex'r of Joel Walker, deceased." 

"Received from James Griggs, seven dollars and 37 cents, 
the cost of this fi, fa. 

"J. NiCKOLSOX, Clerk." 

There were also two levies on said fi. fa., one on a house 
and lot in Eatonton, as the property of defendant Griggs, 
dated 1st February, 1855; the other on seven hundred acres 
of land lying on Murder creek, in Putnam county, as the 
property of Griggs, dated 1st February, 1855. Both of these 
levies were dismissed by order of John H. Walker, Executor, 
on the 19th of February, 1855. 

The defendant also read in evidence so much and such 
parts of an exemplified record of a case in equity, iii Putnam 
Superior Court, brought by Jefierson Adams, as the admin* 
istrator of James A. Merriwether, deceased, against the 
creditors of the estate of deceased, to marshal the assets of 
^id estate, as showed the indebtedness of Merriwether, 
and Griggs as his security, to Joel Walker, and to John H. 
Walker as his Executor; and such parts as showed the 
indebtedness of James Griggs to said Walker and said exec-. 
otor. 

Here the defendant rested. 

The plaintiff in rebuttal, read in evidence so much of the 
said record of said case in equity as showed the indebted- 
ness of Merriwether, and Griggs as his security, to said 



126 SUPREME COURT OF GEORGIA. 

Walker, ez'or, vs. Griggs. 

Walker, and the indebtedness of said Griggs to Walker, at 
the date of the letter ih which the new promise is alleged to 
be contained, and which is hereinbefore stated. 

The evidence being closed on both sides, the presiding 
Judge charged the jury as follows, to-wit : That if the jury 
believe, from the evidence, that the letter of the defendant 
contains an absolute, clear, distinct and unequivocal promise 
to pay the Merriwether notes, to which defendant was secu- 
rity, and that the note sued on is one of the identical notes 
referred to in the letter of defendant, and that he intended to 
include the same in said promise, then they will find for the 
plaintiff. The jury will take into consideration J. Adams' 
letter, in so far as to ascertain only what note or notes, claim 
or claims, were referred to by defendant, and to ascertain the 
meaning and import of his letter. 

The jury returned a verdict for the defendant. 

Counsel for the plaintiff then moved for a new trial of 
said case, on the grounds : 

Ist. Because the verdict is contrary to law, 

2d. Because the verdict is contrary to the evidence, the 
weight of evidence, and against and without evidence. 

3d. Because the verdict is contrary to the charge of the 
Judge before stated. 

This motion was overruled and a new trial denied, and the 
plaintiff \n error seeks, by his writ, a reversal of tlrat judg- 
ment. 

Scarborough for plaintiff in error. 

McCay & Hawkins for defendant in error. 

By the Court. — Lyon, J., delivering the opinion. 

This was a motion for a new trial, on the grouqd that the 
verdict of the jury is strongly and decidedly against the 
weight of the evidence, which was refused by the Conrt 
below, and brought before us for review by writ of error. 

The debt, upon its face, is barred by the statute of limitB- 
tions, as to the defendant, and the plaintiff sought, on the 



MACON, JANUARY TERM, 1861. 127 

- ~ t III . 

Walker, ex' or, vs, Griggs. 

trial, to take the case out of the operation of that statute^ 
which was relied on by defendant as a defence thereto, by 
the sabseqaent promise or acknowledgment of the debt, as 
contained in a letter written by defendant to J. Adams, on 
10th Febraary, 1857, in reply to one written to him by Mr,. 
Adams on the 6th of that month. 

Aooording to the rule laid down by this Court, in Martin 
v& Broach, 6 Ga., 31, an acknowledgment or promise suf-- 
ficient to obviate the statute of limitations, or impose a new 
obligation, must specify, or plainly refer to, the particular 
demand or cause of action to be renewed or created by it. 

2. Tried by this rule, is this demand, now sued upon, 
specified, or plainly referred to, in the acknowledgment or 
promise contained in the defendant's letter of 10th Febru- 
ary, 1856? We think not. Mr. Adams, in his letter, refers 
generally, to the notes held by Mr. Walker on the late Judge 
Merri wether, and defendant as security. He makes no men- 
tion whatever of the number of the notes so held, the 
amount due on the notes, or when they were given and made 
payable. The defendant, in his reply, makes the same sort 
of general reference. In neither one is this particular debt 
specified, or plainly referred to. 

3. The plaintiff, in order to identify the note sued on- as 
the one referred to by the defendant's letter, introduced in 
evidence an exemplification of a proceeding in equity in 
pQtnam Superior Court, by Jefferson Adams, as the admin- 
istrator of Judge Merriwether's .estate against the creditors 
of that estate, for the purpose of marshaling and distrib- 
uting among those entitled to the same, the assets of that 
estate, in which this particular debt was specified as one 
held by Walker ; one other note by Merriwether, and defend- 
ant as security, was enumerated therein, as belonging to, and 
held by, Walker ; also^ an execution against defendant and 
Merriwether, but which was, in fact, the individual debt of 
Merriwether. The execution was fully paid off out of the 
assets, and the notes received a pro rata share out of the 
assets of thirty cents on the dollar, which was credited on 
them. This evidence is very conclusive that the notes' 



128 SUPREME CX)URT OF GEORGIA. 

Black vs. McBain. 

referred to by Mr. Adams, in his letter, was the note for 
$500, and the demand sued on as the notes held by him for 
Mr. Walker on Merriwether and defendant; and it also 
raises a very strong presumption that defendant, who was a 
party to the proceeding in equity in Putnam, so understood 
the reference, and promised accordingly, but the presump- 
tion is not so strong as to be conclusive. The defendant 
might not have understood the note sued on to be one of the 
notes referred to, though it is probable tnat he did, and 
intended that his promise -should apply to it. But it was a 
question of fact for the consideration of the jury, and they 
having found that the promise did not apply to this demand, 
and the Judge who tried the case having refused to disturb 
their verdict, we do not feel at liberty, under the circum- 
stances, to control that discretion. This is a very old debt, 
made, in 1840, due in 1841, has been actually barred, as 
against this defendant, since 1848, and he is but the security. 
A promise, or acknowledgment to revive the debt as to him, 
ought to be so clear and explicit as to the particular debt, 
that there could be no doubt as to his intention to renew his 
obligation to pay the debt. 
Judgment affirmed. 



Black v^. McBain. 



A promise in writing, to pay the debt of a third person, is a good and 
valid promise, although no consideration appears under the Act of 
19th January, 1852, that Act being unrepealed. 

Complaint, in Sumter Superior Court. Tried before Judge 
Allen, at the October Term, 1860. 

William A. Black instituted an action against Newnan 
McBain, to recover the sum of money mentioned in an agree- 
ment, of which the following is a copy, to-wit : 

* " Whereas, Wm. A. Green has hired, ffcm Wm. A.. Black, 



MACON, JANUARY TERM, 18«1. 129 

Black vs. McBain. 

a negro boy, Ike, and has not yet given any note for the 
hire of said negro : Now, I promise and agree, and hereby 
bind myself to pay to said Wm. A. Black, one hundred 
dollars, by the 25th of December next, for the hire of said 
negro. N. McBain. • 

" 18th of March, 1867.'' 

On the trial of the case, the plaintiff introduced in evi- 
dence said written agreement, and proved that Green did 
hire, and enjoy the services of the negro, Ike, in the year 
1857 ; that when Green hired the negro, he promised to give 
his note, with security, for one hundred dollars, but never 
did so. 

The plaintiff here rested; and the presiding Judge, on 
motion, awarded a non-suit against the plaintiff, on the 
ground that the contract and promise of the defendant was 
void by the statute of frauds. 

This judgment was excepted to by the plaintiff, and is the 
error alleged in the record in this case. 

B. Hill for plaintiff in error. 

McCay & Hawkins for defendant in error. 

By the Court — Lyon, J., delivering the opinion. 

Ought the Court to have awarded a non-suit in this case ? 
We think not. The paper sued upon was the agreement in 
writing of the defendant to pay the debt of a third person, 
one Wm. A. Green. Such agreement, by the Act of 19th Jan- 
nary, 1852, '^ is sufficient to maintain an action on the same, 
ahhoagh no consideration may be expressed in the written 
agreement to do the same." — See Pam. Acts, p. 243. The 
Coart below, in making this decision, was evidently misled 
by the compiler's marginal note, to an Act of February 16, 
1856, Pam., page 240, entitled " An Act to repeal an act 
to alter, amend and explain section 4th of an act, entitled An 
Act for the prevention of frauds and perjuries" : " Be it cn- 
ddedj eU^ That the above recited act be, and the same is 
Vol. XXXII 9. 



130 SUPREME COURT OF GEORGIA, 

Boatright et al.<, vs. Heirs of Porter. 

hereby repealed.'^ On the margin of this act the compiler 
makes this note: "Repeals Act of 19th January^ 1852." 
That note was erroneous, for the Act did not repeal the Act 
of 19th January, 1852, but it did repeal the Act 6f February 
20th, 1854, for this latter act is entitled "An Act to alter, 
amend, and explain section 4th of an act, entitled An Act 
for the prevention of frauds and perjuries,^' and that is just 
the title of the act repealed by 'the Act of February 16th, 
1856. The Act of 19th January, 1852, is entitled "An 
Act to give a construction to the fourth section of the Statute 
of Frauds, so far as the same relates to a party defendant 
being chargeable, etc." This act, that of 19th January, 1852, 
is still of force, and unrepealed, and, of course, controls this 
case. 

Judgment reversed. 



Boatright et cd., va. Heirs of Porter. 

1. A sberifiTs deed being offered in evidence, without the production of 
the execution under which the sale was made, or of any exemplifica- 
tion of the judgment, but it appearing that great diligence had been 
shown to procure both : Held, thai the deed was properly admitted in 
evidencei under the circumstances, upon the faith of its own recitals. 

2. In an action of ejectment, evidence of the general bad character of a 
man who was both feoffee and feoffor in the chain of title of one of the 
parties, but who was connected with the case in no other way than as 
his name so appears in the title, is inadmissible. 

3. It is not error in the Court, whilst a cause is progressing, to require 
one party, upon motion of the other, to deliver up, to be used aa 
evidence, papers pertiuent to the issue, and admitted to be in his pos- 
sion and in Court. 

4. Under the' Act of 1764, entitled "An Act to suppress lotteries, and to 
prevent other excessive and deceitful gaming," a deed made in cod> 
sideration of money won by unlawful gaming, vests no title in the 
grantee, but the title passes at once to the next of kin of the gr&Dtor. 

6. In an action of ejectment, if the plaintiff rely upon a sheriff's deed, 
' which is junior to a deed from the defendant in execution, put in evi- 
dence by the defendant, he must show affirmatsvely, that Uie lietx of 



MACON, JANUARY TERM, 1861. 131 

Boatright et aX. , vs. Heirs of Porter. 

the jadgment under which the sheriff sold, attached prior to the con- 
▼eyaDce of the defendant in execution, under which the opposite party 
claims. 

Ejectment in Dougherty Superior Court. Tried before 
Judge Allsn, at the December Term, I860. 

This was an action of ejectment, instituted on the 17th of 
May, 1850, in favor of John Doe, on the demises of John S, 
Porter, Henry J. Porter, Abraham McLaws, and his wife 
Sarah McLaws, heirs at law of John S. Porter, deceased ; 
James CaiiJege, Martin Fields, Benedict White, and Hamlin 
J. Cook, against Richard Roe, casual ejector, and John 
Boatright, and Matthew Whitfield, tenants in possession, to 
recover lot of land number 16, in the second district of orig- 
inally Early, now Dougherty county. 

On the trial of the case in the Court below, the following 
testimony was adduced, to-wit : 

EVIDENCE FOR THE PLAINTIFFS. 

The grant from the State of Georgia to Benedict White, 
for the land in dispute, dated the 29th of December, 1820. 

A deed from Benedict White to Martin Fields, for the 
land in dispute, dated the 22d of May, 1824, and recorded 
the 28th of December, 1849. 

A deed from Martin Fields to James Cartlege, for the 
land ID dispute, dated the 16th of March, 1826, and recorded 
the 28th of December, 1849. 

A deed from James Cartlege to John S. Porter, dated the 
2d of April, 1830, and recorded the 28th of December, 1849, 
for the land in dispute. 

The admissions of counsel for defendants, that the land 
sued for was situated in the county of Dougherty, and that 
the tenants sued, as such, were in possession at the time the 
process was served. 

Here the plaintiff rested. 

EVIDENCE FOR THE DEFENDANTS. 

A copy deed, duly certified from the records of Early Supe- 
rior Court, from Benedict White to Edwin Huff, dated 30th 



132 SUPREME COURT OF GEORGIA. 

Boatright et al. , vs. Heirs of Porter. 

of December, 1820, and recorded in December, 1821, accom- 
panied with an affidavit, accounting for the non-production of 
the original. 

A deed from Edwin Huff to James Anderson, dated 24th 
of September, 1822, and recorded 2l8t of October, 1823. 

Here the defendants closed. 

EVIDENCE FOR THE PLAINTIFFS IN REBUTTAL. 

Benedict White testified: That he was dulv released 
from liability in this case; that he resided in Columbia 
county before the war between the United States and Great 
Britain, and was a soldier in that war ; that immediately afler 
the peace, he settled in Baldwin county, and lived there from 
March until the second Christmas afterwards ; that he drew 
the land in disputes whilst he lived in Baldwin county ; that 
from Baldwin, he moved to Twiggs county, and resided there 
two years; that from Twiggs, he moved to Wilkinson, and 
lived there one year ; that from Wilkinson, he moved back 
to Columbia, and while a citizen of Columbia, he got Afthur 
Foster to take out the grant for him ; that Foster sent the 
grant to him, through the post office at Augusta, and when 
he took it out and started home, he met with Mailin Fields, 
got into a drinking spree with him, and lost the land in a 
game of cards with Fields, and made him a deed ; that, on 
the next day, he did not know that he had gambled off his 
laud, until Eldridge, one of the witnesses, told him of it, and 
he has recollected it ever since; that he never conveyed the 
land to Edwin Huff, and, if there was ever such a deed, it was 
a forgery ; that he has testified in this case several times— once 
on the stand, and three times by answers to interrogatories ; 
that he had never Sworn that he did not know Huff; that 
he never swore that he never lived in Twiggs county a day 
in his life; that A. H. McLaws gave him a note for $300 for 
his good will, to prevent him from setting aside the deed to 
Fields, because based on a gaming consideration ; that he 
gave the note to Mullin, to get the money, and had not seen 
it since; that he never swore that Mullin brought the note 
back to him, nor that he had delivered the note to McLaws' 



MACON JANUARY TERM 1861. 133 

Boatright et ah, vs. Heirs of Porter. 

brother; that the note had never been paid to him; that 
witness once thought he would get something from the heirs 
of Porter^ but that it had got so mixed up^ that he had given 
up the idea ; that he was ignorant and illiterate^ and could 
neither write or read writing ; that he had a conversation 
with Turpin on the cars, but not about this suit^ or the land 
in dispute, but about land that he was entitled to as a soldier; 
that he did not know whether the conversation with Turpin 
was about the land he drew or not, he could not remember ; 
that he did not know whether he told Turpin that he had 
been down to Albany to attend to a law-suit or not, he did 
not remember; that he did not know whether he told Turpin 
that he was interested in the suit or not, and that, if a recovery 
was had for the plaintiffs, he would get half; he did not 
remember ; that what he said to Turpin was not said under 
oath. 

A deed from Robert Hardy, former sheriff of Baker 
county, for the land in dispute, dated 4th of March, 1828. 

A deed from James Anderson to John Hickman for the 

land in dispute, dated 13th of December, 1831, which was 

objected to by defendant's counsel, and objection overruled. 

A deed from Hickman to Wells Thompson, dated 8th of 

October, 1833, and * 

A deed from Thompson, by John Hickman, his attorney 
in fact, to Alexander Dennard, both of which were objected 
to by counsel for defendant, and the objection overruled. 

L. G. Sutton testified : That, in 1834, he knew John 
Hickman, who was then twenty-five or thirty years old, and 
his neighbors spoke of him as a contentious man ; that 
rumors were afloat of his being engaged in land swindles in 
1838 ; that he ran away shortly thereafter, and witness under- 
stood on account of difficulties about a land transaction ; 
that lands, like the lot in dispute, could have been bought, in 
1820, for $30 00, or $40 00 per lot. 

EVIDENCE FOR DEFENDANT IN SUR-REBUTTAL. 

Needham W. Collier testified : That some five or six 
years ago, he saw a note signed by A. H. McLaws, payabl^^ 



\ 



134 SUPREME COURT OF GEORGIA. 

Boatright et al,, vs. heirs of Porter. 

to Benedict White, for $300 00, whenever the heirs of John 
S. Porter should recover the land in dispute, upon the inter- 
rogatories of the said Benedict White ; that he first was of 
opinion that White had it, but now thinks it was not White; 
that the man who had it, and whose name witness does not 
know, showed it to witness and others, on the 11th of Febru- 
ary, 1853, and made inquiry about the status of the land, 
and the residence of McLaws; that witness called the atten- 
tion of Pace, Hampton, and others to the circumstance, and 
took a memorandum of the note, and what it said, at the 
time. 

Pace testified that Collier's testimony was true. 

Col. David A. Vason and the Hon. Lott Warren both 
testified : That on his former examination as a witness, Ben- 
edict White swore that he never lived in Twiggs county ; that 
they are certain of this, because they thought that plaintiffs 
might rely upon a sheriff's deed to Porter, resting on a sale 
under Sifi,fa. from a Justice's Court of Twiggs county, and 
asked the witness the question, in order to ascertain if be 
ever lived in Twiggs county ; that afler White had testified 
on that trial, a motion was made to continue the case, to get 
the Justice's Courtyf. /a., and the motion was not resisted by 
the witnesses, on the ground that White never had resided 
in that (Twiggs) county. » 

William H. Turpin testified : That he had a conversa- 
tion, at the request of Mr. Sullivan, with Benedict White, on 
the cars, in which he spoke of a law-suit in Albany, about 
some land he drew as a soldier, and that they were trying to 
defraud him out of it; that he lived in Columbia county, and 
drew the land ; that the lawyers were- to be paid if the land 
was recovered, and if no recovery no pay ; that T. C. Sulli- 
van heard the conversation, and seemed pleased with White's 
statements ; that he saw nothing in White to make him dis- 
trust him, and does not believe he would swear falsely, and 
would believe him on his oath. 

Thomas C. Sullivan testified : That he had made dili- 
gent inquiry for Edwin Huff, and learned from his former 
neighbors, that he had been dead fifteen or sixteen years ; 



MACON, JANUARY TERM, 1861. * 135 

Boatright ei al,j vs. heirs of Porter. 

that the &ct3 testified to by Yason, and Warren^ and by 
Tarpin are true. 

William Sanford testified : That he knew Edwin HuflF 
in 1815^ or 1820, or thereabouts, in Baldwin county, but 
does not recollect the year he lefl Baldwin county, nor whither 
he removed; that his character was that of an honorable, cor- 
rect man, whose integrity witness never heard impeached ; 
that he was an overseer, of moderate means. 

William R. Butts testified : Tliat he knew Edwin Huff 
well ; that he bore the character of an honest man ; that he 
and William Parham were the attesting witnesses to the deed 
shown to witness, from Edwin Huff to James Anderson^ 
dated 24th of September, 1822; that witness also knew Ben- 
jamin Talbert, Thomas Humphries and" James C. Humphries^ 
all of whom were men of good standing, and unblemished 
character; that Talbert and James C. Humphries are dead, 
and Thomas Humphries is still living ; that he has no dis- 
tinct recollection of Benedict White, although the name is 
familiar. 

Thomas C. Huhphbies testified : That the deed shown 
him is a copy of one purporting to be by Benedict White 
to Edwin Huff, both of Baldwin county, dated 30th of 
December, 1820^ and attest by witness and Benjamin 
Talbert, and James ^. Humphries, J. P.; that witness has 
no recollection of the deed or its execution; he knew White, 
and Huff, and the witnesses ; Huff was a man of good char- 
acter, so was James C. Humphries, and Benjamin Talbert, and 
if any one signature to the original of the copy-deed is gen- 
aine, the deed is not a forgery. 

The depositions of Benedict White, taken on three differ- 
ent occasions in this case, and now offered to impeach said 
White: 

In the first, he testified : That he drew the land in dispute 
irhilst he lived in Baldwin county; that he has since resided 
in Columbia county, and moved from thence to Emanuel 
coaaty ; that be sold the lot to Martin Fields, long before 
lie left Columbia, as the deed annexed to the interrogatories 
will show, and he never sold it to any one but Fields, as he, 



136 SUPREME COURT OF GEORGIA. 

Boatright et ahj vs. heirs of Porter. 



witness, is an honest man ; that he sold the land to Fields, 
on the road from Columbia to Augasta ; that the land never 
did him any good, as he lost the consideration at cards with 
said Fields; that he never knew Edwin Huff; that he had 
no interest in the suit, and was a stranger to the parties in 
interest, except A. H McLaws, and had, therefore, no induce- 
ment to do anything but justice between the parties. 

In the second, he testified, amongst other things, that he 
was acquainted with Edwin Huff, of Baldwin county ; that 
McLaws gave him his note for ^300 00, not to set up any 
claim to the land, as he had lost it at cards, and to indemnify 
him against loss, if he should go to Baker county as a wit- 
ness ; that he gave the note to one Mullin, who went out to 
Baker county, so that* if he saw McLaws, and could get any- 
thing, he, Mullin, might have it, but failing to get anything, 
Mullin returned the note to him, White; that be afterwards 
gave the note to a brother of McLaws ; that the note was 
not given as a compensation to testify ; that the note was to 
become payable on the contingency of witness having to 
attend Court, and pay his expenses ; that he knows nothing 
about Edwin Huff's character for honesty, but does not 
believe him to be just or honorable, or he would not claim 
the land. 

In the third, he testified, that he. was acquainted with 
Edwin Huff. 

Col. Pje^er J. Strozier testified : That he knew John 
Hickman in 1838, or 1839, and that he understood that he 
ran away, and it was also reported that he had some difficul- 
ties with Thomas Holmes about land trades ; that Hickman, 
if in life, would now be about 50 years old. 

Dr. Gilbert and Joab Gillian testified about the same 
that Strozier did, as to Hickman's age, if alive, and that they 
both knew him in 1838 or 1839. 

The testimony being closed, the presiding Judge charged 
the jury : 

"That if the jury believed that Benedict White made 
both deeds, then the deed to Huff, under which defendants 
claim, being the older, they should find for the defendants. 



MACON JANUARY TERM 1861. 137 

Boatriglit et al,, vs. heirs of Porter. 



'• The testimony of Benedict White was admitted by the 
Court, because, on his voir dirjB, he rendered himself compe- 
tent, but should the jury believe, from the evidence in this 
case, that he, White, will be entitled to $300 00, or any other 
sum of money, ander the agreement with McLaws, to be 
paid only in the event that the plaintiffs do recover, then 
this will show such an interest in him, in this case, as dis- 
qualifies him as a witness therein, and the jury should dis- 
card his evidence. 

" That there are several modes of discrediting witnesses, 
and amongst them, it is competent to show contradictory 
statements, made before, and if the jury are satisfied that 
Benedict White has made statements under oath, upon mate- 
rial facts in this case, contradictory to what he stated on this 
trial, then the jury should not give his testimony any weight 
in this case, for the reason, that it is unsafe to trust to the 
statements of a witness as to any matter, who has testified 
falsely to any material fact in the case. 

"That if the jury should believe that Benedict White 
never resided in Twiggs county, then no execution could be 
legally obtained there against him, and the sheriff's sale, 
under a ^. /a. from Twiggs county Justice's Court is void, 
and no title could pass under such a sale. v 

"That if the jury should believe this lot of land was won 
at cards, by Martin Fields, from White, and the deed was 
made upon that consideration, then no* title passe4 to Fields, 
hj the deed, and plaintiffs cannot recover. 

"That if the jury are satisfied that the deed to Martin 
Fields was made upon a gaming consideration, then the 
sheriff's sale afterwards, oould convey no title from Benedict 
White to the purchaser, because from the date of the deed 
in 1824, to Field,"he had no interest in the land, for all his 
title vested in his next of kin — unless the plaintiffs had 
shown a valid and subsisting judgment against White, ante- 
rior to the deed to Fields, and as there is no evidence of the 
date of the^. ya. against White, under which the land was 
sold in 1828, the title cannot have effect or relate to any time 
anterior thereto." 



138 SUPREME COURT OF GEORGIA. 

Boatright et al.j vs. heirs of Porter. 

Under this charge, and the facts hereinbefore set forth, 
the jury returned a verdict in favor of the plaintiffs for the 
premises in dispute, with costs of suit. 

Counsel for defendants then made a motion for a new trial, 
predicated on the grounds following, that is to saj : 

1. fiecause the verdict is contrary to law and evidence. 

2. Because the verdict is against the weight of evidence, 
and without evidence. 

3. Because the verdict is contrary to the charge of the 
Court, and especially so, to the following paragraph of the 
charge: "that if the jury were satisfied that the deed from 
White to Fields, in 1824, was based upon a gaming consid- 
eration, then no title vested in Fields, but thereby vested in 
the next of kin of the said White." 

4. Because the Court erred in allowing the sheriff's deed, 
under which the plaintiffs claim title, to go to the jury u})on 
the following testimony of Hamlin J. Cook, to-^wit : '^ that 
he had applied in Dennard's district, Twiggs county, for the 
Justice's Court fi. fa,f under which the land was sold, and 
after diligent search, was unable to find any docket for the 
district, or any information as to the fi, fa.; that there was 
now no Justice of the Peace in that district ; that he had 
searched the clerk's office of Baker Superior Court, but found 
DO trace of the fi. fa.; that he had not applied to Kobert 
Hardy, the sheriff, who sold the land, for the f,. fa.; that he 
has understood that Hardy lives somewhere in the West; 
that he did not apply to the Executive Department to ascer- 
tain who was Justice of the Peace in Dennar/1's district^ 
Twiggs county, at the time, or before, or after the sale; that 
he did apply to the heirs or administrators of Porter, the 
plaintiffs in this case, for said jE. fa" The defendant&'admit- 
ted that the ji. fa. was not in the possession, power, custody 
or control of the heirs of Porter, but objected to the deed 
going in evidence, unless the existence of the fi. fa.y recited 
in it, was proved, which objection the Court overruled, and 
the deed was admitted, the Court holding that it was not 
necessary to prove the existence of the fL fa., and that its 



MACON, JANUARY TERM, 1861. 139 

Boatright et al. , vs, heirs of Porter. 

non-producfcion was sufficiently accounted for to let in the 
deed. 

5th. Because the Court erred in admitting the evidence of 
Strozier and Sutton^ as to the general bad character of John 
Hickman^ one of the parties under whom the defendants 
claimed title. 

6th. Because the Court erred in requiring counsel for de- 
fendants to deliver up to the plaintiffs' counsel, a deed from 
James Anderson to John Hickman for the land in dispute, 
and also a deed from John Hickman to Wells Thompson, 
and one from Wells Thompson, by his attorney in fact, Alex- 
ander Dennard, and in allowing the plaintiffs to introduce 
them as evidence against defendants, and over their objection, 
when no notice to produce the deeds bad ever been served 
upon defendant or their counsel. 

7tlj. Because the Court erred in refusing to charge the 
jury, "that whatever title was in Benedict White, at the time 
he made the deed to Fields, became vested in his next of 
kin by said deed,'* and also, " that as the law stood in 1820, 
anj one cot^ld take out a plat and grant by paying the grant 
fee?, and it was not necessary for Huff to have obtained the 
original plat and grant to White, in order to make his titlo 
good." 

This motion was overruled, and the new tria.1 refused, and 
the plaintiSs in error ask a reversal of the judgment, because 
of alleged error in that decision. 

Vason & Davis for plaintiffs in error. 
Strozier & Slaughter for defendants in error. 

By the Court. — Jenkins, J., delivering the opinion. 

The jury having rendered a verdict for the plaintiffs in the 
Court below, defendants moved for a new trial, on several 
;:roands, all of which were overruled by the Court, and to 
llie overruling of each, plaintiffs in error except. I post- 
pone, to the others, the consideration of the 1st, 2d, and 3d 
grounds. 



140 SUPREME COURT OF GEORGIA. 

Boatright et al.f vs. heirs of Porter. 

(1.) There had been a sheriflF's sale of this land, under a/, 
/a., from a Justice's Court, in the county of Twiggs, (as ap- 
peared from a recital in the sheriflF's deed), at which defend- 
ants in error purchased. Where their deed was oflTered in 
evidence, plaintiffs demanded, as preliminary evidence, the 
production of the fi. fa. This was not done, but an attempt 
was made to shew diligent and ineffectual search for it; and 
the Court having decided that its absence was sufficiently 
accounted for, admitted the deed, which ruling was made 
the fourth ground of the motion for a new trial. It does 
appear that very considerable and sufficient diligence was used 
in the search, both for the fi fa. and the judgment under 
which it issued. We know that it is no uncommon thing for 
the records and files of the Justices' Courts in Georgia to be 
lost, and in this case the evidence shows, that in the district 
whence this fi. fa. emanated, the Court itself does not now 
exist. The absence of this fi.fa., and of the judgment, and 
the want of all evidence as to the date of either, must have 
very great effect upon the value of this sheriff's deed to the 
purchaser, whenever it comes in conflict with aii older deed, 
passing title out of the defendants in execution, but upon the 
question of its admissibility in evidence in this case, we must 
affirm the judgment of the Court below. 

(2.) The fifth ground, is predicated upon the admission by 
the Court, against the objection of plaintiffs in error, of evi- 
dence of the general bad character of Hickman, who was 
both grantee and grantor in plaintiffs' chain of title. He is 
connected with the case in no other way than as his name 
appears in two links of the title. It was not attempted to 
show that he ever practiced any fraud regarding the title 
with which he was so connected, but simply to prove that his 
general character was bad. This is certainly a novel way of 
attacking title to real estate. How many titles to real estate, 
in this, and every other country, might be invalidated, if it 
were legitimate to overthrow them by proof that they had 
passed through bad men. Very bad men may very honestly 
acquire, and very honestly transfer, very good titles. This 
evidence should have been rejected. 



MAOON, JANUARY TERM, 1861. 141 

Boatright et al. ,vs, beirs of Porter. 

(3.) The Court, upon motion of defendants^ counsel, requir- 
ed plaintiffs in error to produce certain deeds, appertaining to 
the title of the latter to the land in dispute, admitted to be 
in their possession, and in Court; and in permitting defendants 
to give them in evidence to the jurj, and on this ruling, the 
sixth ground is predicated. This is held to be erroneous, 
for the reason that no notice had been given to produce the 
papers. It is conceded, that had such notice been given, in 
conformity with the law, the ruling of the Court would have 
been oorrect. This position would seem to have been assumed 
upon the idea, that the power of the Court to require the 
delivery of the papers, and the right of the opposite party to 
use them, depended upon the notice to produce them. There 
is, here, a misconception of the object of the notice, and of 
the power of the Court. The object of the notice, is simply 
to compel the party to bring the papers into Court. Being 
in Court, either with or without notice, the power of the 
Court over them is precisely the same. It exists independ- 
ently of the Acts of the Legislature, and the rule of Court 
relative to notice previously given to produce them in Court, 
to be used as evidence. We find no error in this. 

In the 7th ground, it is assigned as error, that the Court 
erred, in refusing to charge the jury, '^ that as the law stood, 
in 1820, any one could take out a grant by paying grant 
fees; and that it was not necessary for Huff (under whom, 
as the grantee of White, the drawer of the lot in dispute, 
plaintiff* in error claims) to have obtained the original plat 
and grant to White, in order to make his title good." 

We are not preparecl to hold that, at any time, any body, 
a stranger for instance, without the production of authority 
from the drawer* of a lot of land, under our lottery system, 
coald legally take out a grant for the same in the drawer^s 
name. If there be any statute authority for such an act, it 
ims escaped my notice ; none such has been cited. That a 
practice of this kind may have grown up, is not improbable, 
but we will not say it was legal. If the Court was requested 
to charge the jury, that the validity of Huff^'s title to the 
land, from White, did not depend either upon the fact that 



142 SUPREME COURT OF GEORGIA. 

Boatrighte^aZ.) vs. heirs of Porter. 

Huff, himself y obtained the grant to White from the State, 
or, upon the fact, that, oontemporaiieously with the delivery 
of White's title to him, he also received the grant which had 
been issued to White ; and refused so to charge, there ^as 
error in the refusal. 

I am constrained to put this ruling hypotheticallj, because 
I do not clearly understand the latter clause of this ground. 

(4.) The 1st, 2d, and 3d grounds may be considered together. 
They aver that the verdict is without evidence, against evi- 
dence, against the weight of evidence, contrary to law and 
to the following charge of the Court, "that if the jury were 
satisfied, that the deed from White to Fields, (under whom 
defendants in error claim), in 1824, was based upon a gam- 
bling consideration, then no title vested in Fields, but thereby 
vested in the next of kin of the said White.'^ 

This charge was in conformity with the Act of 1764, 
Cobb's Digest, 725. But, whether the verdict of the jury 
was contrary to this charge, or contrary to law, depends upon 
the facts of the case. 

* 

To bring the case under this charge, there must have been 
evidence first, that the deed to Fields was based upon a gam- 
bling consideration, and secondly that defendants in error 
had no available title to this land, other than that derived 
through Fields. We must, therefore, look into plaintifls' 
title, as developed in the brief of evidence. 

There is no question that the title passed originally from 
the State to White, by grant. This grant was put^in evi- 
dence by plaintiffs below, who also deduced title from White, 
through Fields and Cartledge, to their ancestor, John S. Por- 
ter. Their chain of paper title was complete, and they 
closed with a prima facie case made. It must be noted, 
however, as it will hereafter become important, that the deed 
from White to Fields, bore date 22d May, 1824. Defendants 
below then put in evidence a deed from White, (the same 
person), to one Huff, for the same land, dated 30th Decem- 
ber, 1820, which was just one day after the date of the grant 
to White. Then a deed from Huff to one Anderson, of later 
date, and there closed, relying upon having shewn title out 



MACX)N, JANUARY TERM, 1861. 143 

Boatrigbt et al.j vs. beirs of Porter. 

of White, anterior to the execution of his deed to Fields. 
Plaintifis below then, in rebuttal, introduced Benedict 
White, the State's grantee, who testified that he had never 
made a deed for the land in dispute to Huff. That the deed 
in evidence from him to Huff was a forgery. But he further 
testified that the deed from himsllf to Fields, put in evidence 
bv plaintiff, was made in consideration of money won from 
him at a game of cards, by Fields, when he was in a state of 
intoxication. It may be well, in this connection, to state, 
that this witness, (having been made competent by a release), 
had been examined, by commission and interrogatories, in 
this case, two or three times previously, and had once before, 
on a former trial of the same case, been personally sworn 
and examined as a witness in open Court. His former depo- 
sitions were read, and witnesses sworn as to his former testi- 
mony on the stand, and others, that he had said to them, at 
difierent times, things, which, on this occasion, when under 
examination, he had denied having said to them ; all this for 
the purpose of impeaching the testimony of White. 

Plaintiffs below also put in evidence a deed from Brobert 
Hardy, former sheriff of Baker county, to John S. Porter, 
(their ancestor), for the land in dispute, dated 4th March, 
1828. 

In this state of the evidence, if the jury believed the 
statement of White, that his deed to Fields was founded on a 
gaming consideration, they found contrary to the charge of 
the Court, unless they predicated their finding upon the 
sheriff's deed to Porter. They may have done this, or they 
may have wholly discredited the testimony of White. If 
they did discredit White, then the plaintiffs below were left 
without evidence, to invalidate the deed from White to Huff; 
for that was impugned by no other evidence. We think the 
testimony of White should have been put out of view en- 
tirely, as being wholly unworthy of credence, because he was 
self-impeached, and impeached by the testimony of several 
credible witnesses. 

Putting, then, his evidence out of the case for a moment, 
tow ^tood the parties before the jury — plaintiffs below stoo'^ 



144 SUPREME (X)URT OF GEORGIA. 

Boatright et al.j vs. heirs of Porter. 



upon two titles, first, a chain from White through Fields, to 
tl^eir ancestor ; secondly, a sheriff's deed to their ancestor, 
as purchaser under execution against White. Defendants 
below showed that White had conveyed this land to Huff, 
more than three years anterior to the conveyance to Fields, 
and more than seven years an1:erior to the date of the sheriff's 
^eed. In the absence of any evidence to invalidate the deed 
to Huff, it establishes the fact that, at the time of White's 
conveyance to Fields, the former had no title to the land, 
and consequently neither the deed from Fields, nor any sub- 
sequent one in the same chain, passed any title. The con- 
clusion, therefore, would be that the plaintiffs below failed to 
deduce title through this chain to themselves. 

But the deed to Huff was also older than the sheriff's deed, 
and by this test it would appear; that at the time of the sale 
by the sheriff, there was no title in White, the defendant in 
execution, and consequently the sheriff could convey no title 
to the purchaser. 

(5.) But the reply is, that the sheriff's title, by relation, 
goes back to the time when the lien of the judgment attached. 
The question then arises, when did that lien attach. Did it 
attach before the sale to Huff? What is the evidence of it? 
The execution is not here, the judgment is not here, and in 
the absence of both, there is no secondary evidence of the 
date of either. The Court can neither presume that the 
judgment was in existence anterior to the date of the deed to 
Huff, nor throw the burthen of provijjig that it was not upon 
the plaintiffs in error. This fact is important to the defend- 
ants in error, and should have been affirmatively shewn by 
them on the trial. It may be their misfortune that they can- 
not prove it, but against that, neither the Court below, nor 
this Court can relieve them. 

In Whatley vs. Newsome, 10th Geo. R., 74, it was held 
*' necessary for a party in ejectment, claiming under a sheriff's 
deed, to produce the execution, with the sale under it^ and 
the deed made in pursuance thereto, and prove, either title in 
the defendant, or possession, subsequent to the renditi6n of 
the judgment." 



MACON, JANUARY TERM, 1861. 146 

Sheehan vs. Kennelly. 

If it be suggested that there is still another view of this 
evidence which the jury may have taken, viz: that they may 
have believed the testimony of White, disproving the deed 
from himself to Huff, and invalidating that to Fields, and 
thus leaving the title in White at the time of the sheriff's 
sale, whereby the title passed to the ancestor of defendants 
in error — this is the reply. The evidence of White only so 
far invalidates the title to Fields, as to prevent its vesting in 
him and his assigns. Under the state of facts disclosed by 
turn, the Act of 1764 intervened, and vested the title in his 
next of kin ; and here again it became necessary for the de- 
fendants in error, to show affirmatively, that the lien of the 
judgment attached anterior to the vesting of title to the land 
in White's next of kin, by operation of the statute. 

In any and every view we have been enabled to take of 
this case, our conviction is, that the verdict is contrary to 
law, and strongly and decidedly against the weight of evi- 
dence. Inasmuch as its effect is to dispossess a party in posses- 
sion, who is presumed to be rightfully so, until the contrary 
is made to appear, we think the Court below erred in over- 
niling the motion for a new trial, and, therefore, reverse the 
judgment, and order that a new trial be had. 

Judgment reversed. 



Sheehan vs. Kennelly. 

^>ne of two executors filed a bill in Eqaity, against his co-execntor, 
alleging a sale of testator* s property, receipt of money by defendant, 
that he was in an embarrassed condition, and had spent the money, 
etc; with a prayer that the defendant might bring the money into 
Court, to be secured for the trusts of the will, to protect complainant 
from loss on account thereof, etc.: 

1. Held, That there was equity in the bill. 

'•^ That an injunction prayed for by the bill, requiring the defendant to 
giTe bond to have the money forthcoming to answer the decree pre- 
viously granted and ordered, was proper and necessary, and ought not 
to have been dissolved. 

Vol. XXXII — 10. 



146 SUPREME COURT OF GEORGIA 

Sheehan vs, Kennelly. 

Id Equity, In Bibb Superior Court. Decision made by 
Judge Henby G. LAifAB, on the 28th of July, 1860. 

On the 12th day of July, 1856, Dennis Sheehan filed his 
bill in equity, against Joseph Kennelly, alleging the follow- 
ing facts, to- wit : 

On the 15th of May, 1860, John. Sullivan made his will, 
by the second item of which he beqeathed to his sister, Mar- 
garet Cooklin, the sum of $450, for and during her natural 
life, remainder to her children, after her death. By the third 
item of the will, the testator be<^ueathed all the rest and resi- 
due of his estate, real and personal, of any kind whatever, 
to his neice, Judy Sullivan, and his nephews, Michael Sulli- 
van, Timothy Sullivan, and their mother, the widow of the 
testator's deceased brother, Timothy Sullivan, share and share 
alike, to be paid to the testator's said sister-in-law, for the 
use of herself and said three children, and to their heirs for- 
ever. The said Sheehan and Kennelly were appointed execu- 
tors in and by the will. Shortly after the making of said 
will the testator died, without leaving any wife or children, 
and leaving said will in full force. The will was proven and 
recorded, and Sheehan and Kennelly were duly qualified as 
executors thereof. On the 14th of July, 1856, the property 
of the testator's estate was duly inventoried and appraised, 
and returned to the Court of Ordinary of Bibb county, which 
property consisted of five dwelling houses and lots on Wharf 
street, Macon, Georgia, appraised at $1,400, and a note 
against Joseph Kenelly for $77 30. The houses and lots 
were rented for a short time, the proceeds of which were 
received by Kenelly, as co-executor, and held by him as 
such. Afterwards the property was sold by the executors, 
. .in accordance with the terms of the will ; and the proceeds 
of the sale, amounting to fifteen hundred dollars, were re- 
ceived by Kenelly, and there is still in his hand, as co- 
executor of the complainant, after paying the legacy to 
Mrs. Cooklin and her children, and the expenses of the 
administration, a net balance of twelve hundred dollars, 
principal and interest, which, according to the will, belongs 



M:ACX)N, JANUARY TERM, 1861. 147 

Sheehan vs. Eennelly. 

to Jady, edias Ellen Sullivan, and her children, all of whom, 
except Timothy Sullivan, reside in Ireliand, out of the limits 
of the United States. Kenelly has had said sum of money 
since 1857^ and has failed to pay the same to the legatees, or 
to any one for them, notwithstanding they have tried, and 
are still trying to obtain it. Kenelly has but little means or 
property, all of which can be sold in a short time, and con- 
verted into cash, and he is leading an idle life, and has told 
the complainant, and others, that he intended to sell out and 
leave the State of Georgia, which the complainant believes 
and fears he will do. Complainant has been advised, and 
believes, that, as he advised and consented to the renting and 
hale of said property, and the disposition of the proceeds and 
the like, he will be held responsible for the loss which would 
accrue to the said legatees, by the removal of the said Ken- 
elly from the State, as aforesaid, which complainant believes 
will be the result. By reason of all which, complainant 
believes and fears that he will be called upon and heM liable 
to the said legatees for the money aforesaid. 

The bill prays, amongst other things, that Kenelly may 
be enjoined from using or disposing of the funds, and that 
he be required to give bond and security for the forthcoming 
and payment of said fund, to abide the decree of the Court 
in the premises, and that the Court decree that Kenelly pay 
the fund into Court, taking the Clerk's receipt as a voucher, 
so that the estate may be wound up, and the executors dis- 
cliarged. 

This bill was met by the defendant with a demurrer, which 
was overruled, and the defendant required to answer. 

Complainant amended the bill, by alleging further : That 
since the said bill was filed, the widow and children of Tim- 
othy Sullivan, who are entitled to the fund mentioned in the 
bill) to which this is an amendment, have filed a bill in equity 
in Bibb Superior Court, to recover said fund ; that Kenelly 
has already wasted said fund, and used it for his own pur- 
poses, and is embarrassed with debt, and he is without income, 
having no property except that mentioned in his answer; 
that when the fund was raised by the renting and sale of the 



148 SUPREME COURT OF GEORGIA. 

Sheehan vs. Kennelly. 

property specified in the bill, it was distinctly agreed, that 
Kenelly should receive the fund, and deposit the same in the 
State Bank, to be kept for those entitled to it. 

The defendant, by his answer, admits the truth of the 
charges in the bill, except the following: The amount of 
money charged in the bill, as having come into his hands, is not 
truly stated, but that the sura received by him, belonging to 
the estate of the testator, was $1,343 63; that he has paid 
to the legatees all of said sum, except about $320 ; that all 
the legatees under the will have received their full portion, 
except Michael Sullivan and Julia Sullivan, minor children 
of Ellen Sullivan, residing in Ireland ; that so far as defend- 
ant knows, the said minors have no representative \rho is 
authorized to receive their portion, as none has ever applied 
for it; that he is ready and willing to settle with them, when 
application is made by one legally authorized to receipt for 
it ; he denies trying to keep said legatees out of their money, 
but has done all he could to pay them, so as to protect him- 
self; he denies any intention of moving from Bibb county, 
and that, whilst his means are limited, he is abundantly able 
to pay the sum in his hands, due to said legatees ; that he 
owns a house and lot on Bridge Row, in the city of Macon, 
and a negro woman, worth, in the aggregate, $1,300 00, or 
$1,400 00 ; he also denies living an idle life, but that he has 
been in business nearly all his life, until within the last two 
or three months, during which he has had nothing to do, 
but that he has been endeavoring to obtain a situation, and 
has the promise of, and expects to procure, one soon. 

To the amendment of the bill, he answers as follows : That 
he has not wasted the funds as charged, but that he has, as 
stated in his answer to the bill, paid it all over to the proper 
parties, except $320 00, which he admits that he has used, 
under the idea that he might not be called on for it until the 
minors arrived at full age, and feeling abundantly able to 
pay the same, if called on; that he is chargeable with, and 
is able to pay, the interest on the same, as well as the princi- 
pal ; he denies that he has no income, but that his negro is 
^ired out at the rate of $13 00 per month, and he expects 



MACON, JANUARY TERM, 1861. 149 

Sheehan vs. Kennellj. 

soon to have profitable employment on the railroad; he 
answers that he is abundantly able to pay all his debts, and 
also the sum due the said legatees, now in his hands, twioe 
over; that the sale of testator's property was conducted, 
and deeds made thereto, by both executors ; that no agree- 
ment to deposit the money in bank, was ever made, but that 
the defendant voluntarily said to Mr. J. A. Nisbet, in com- 
plainant's presence, that he supposed he ought to put it in 
bank, to which Nisbet replied that it need not be done, 
unless dcrendant chose so to do, that he could do with it as 
be pleased. 

Upon the coming in of the answer, and on a motion for 
that purpose, with notice to the parties, and afler argument 
had, the Judge overruled the demurrer to the bill, and also 
passed an order dissolving the injunction, on the ground that 
the equity of the bill was sworn off by the answer. 

Counsel for plaintiff in error excepts to the decision of the 
Judge, dissolving the injunction, and alleges error therein ; 
and by consent, the defendant's counsel alleges error in the 
decision, overruling the demurrer. Thus, the two questions 
come up in the same record, and under the same bill of 
exceptions. 

Laxieb & Anderson for plaintiff in error. 

Massey & Rutherford for defendant in error. 

By the Court. — Lyon, J., delivering the opinion. 

The complainant and defendant were the appointed and 
qualified executors of the will of John Sullivan, deceased. 
The property of testator having been sold by the executors, 
in terms of the law, the money arising therefrom, and the exe- 
cution of the will, went into the hands of the defendant, who 
ficeois to have properly paid out all of the same, in a proper 
execution of the trusts of the will, except a balance belong- 
ing, under the will, to the residuary legatees. The bill was 
filed by the complainant, as co-executor, alleging the embar- 
I'assed condition of defendant, his intention to sell off his 



150 SUPREME COURT OF GEORGIA. 



Sheehan vs. Eennelly. 



property, and remove from the couDty, and his neglect and 
refusal to account to the residuary legatees for the balance in 
his hands as executor, belonging to them. The complainant 
asked for an injunction to restrain the defendant from using 
and disposing of such balance so held by him as executor, 
and requiring him to give bond, with security, for the forth- 
coming of the said fund, to answer the decree of the Court. 
This injunction was granted, the bond given. The bill was 
then amended, alleging that he had already spent the money ; 
that is, he had appropriated it to his own use. The defend- 
ant, in his answer, admitted that he had used the money, 
but alleged that he was abundantly able to respond to the 
demand, and to pay over the same, whenever any one came 
forward, authorized to receive and receipt him therefor, whicli 
had not, up to that time, been done. The answer also denies 
that the complainant had any interest in the matter — was 
not liable to account for the money, as ithad;iever come into 
his hands, as executor, so as to make him chargeable therefor, 
but that he, defendant, was alone liable to account therefor 
to the residuary legatees, etc. On the coming in of this 
answer, a motion was made by defendant, to dissolve the 
injunction, because the equity was fully denied by the answer. 
A demurrer to the bill, for want of equity, was also pending 
at the same time, and the two motions were heard together. 
The injunction was dissolved, and demurrer overruled by 
the Court below, to which complainant excepted. Both the 
questions were argued before us, the complainant insisting 
that the injunction should not have been dissolved, and the 
defendant, that the injunction was not only properly dis> 
solved, but that the bill itself ought to have been dismissed. 
(1.) Was there equity in the bill ? We think that there was. 
The main point argued in this connection was this : That, 
according to the allegations in the bill, the complainant had 
no interest in the matter ; that, as he had not received the 
money, nor otherwise actively contributed to its going into 
the hands of his co-executor, he was not liable for it to the 
legatees, and that, therefore, he had no right to file this bill, 
nor the Court to entertain the question therein made on his 



MACON, JANUARY TERM, 1861. 15f 

Sheehan vs. Kennelly. 

application. This is a question, and it is almost the only one 
argued. We shall not decide it in the present case. The 
complainant may be liable^ or he may not be, but whether 
he is or not, this Court would not undertake to adjudicate 
this question in a contest between the executors as to the secu- 
rity and protection of the fund, when the persons who are 
entitled to it are not parties to the proceedings. The l?ill 
alleges that the defendant has abused his trust by appropriat- 
ing the trust. fund to his own use; that he is of limited 
means, out of employment, witli no income, and in aneta- 
barrassed condition. These allegations are altogether suffi- 
cient to give a court of equity jurisdiction of the question. 
The facts that the complainant is prima facte liable for the 
fund — ^for he is so — and in a contest between him and the 
legatees on this account, the onus will be on him to show 
that he is not — is a sufficient interest, on his part, in the sub- 
ject matter, to ait'thorize the Court to entertain his application 
to have the fund protected, and secured for the Use of the 
legatees. 

(2.) In dissolving the injunction we think there was error. 
The defendant admitted, by his answer, that he had used the 
money — had spent it. This was an abuse of his trust. It 
was no excuse for his doing so, that he had sufficient proper^ 
ty to account for it ; that he was solvent, and would account 
for it on a proper demand. It was the duty of the Court, 
OD being informed of the fact, whilst the defendant was be- 
fore the Court, to have secured the legatees and complainant, 
as the co-executor, against all loss on account of this conver- 
BiOD and breach of duty ; and the injunction before granted, 
and the bond given by the defendant in obedience thereto, 
were proper and necessary for that purpose, at least, until a 
hearing and decree is rendered, when the Court will see to it 
that the fund found remaining in the defendant's hands is 
folly invested and secured for the benefit of the legatees, and 
the protection of complainant from all loss, or the probabil- 
ity thereof on this account. 
Judgment reversed. 



152 SUPREME COURT OF GEORGIA. 

Roe, casual ejector, and Green, adrn'r, vs. Kersey et al. 

Roe, casual ejector, and Green, adm'r, vs. Keeisey et al 

1. In an action of ejectment, a bond for titles from A to B, for tbe 
tract of land in dispute, both being strangers to the action, cannot 
avail G, the defendant, as color of title, there being no assignment of 
the bond to him. 

2. An imperfect equity, resting in parbl, cannot serve a defendant in 
ejectment, as color of title. 

Ejectment, in Lee Superior Court Tried before Judge 
Allen, at tiie September Term, 1860. 

This was an action brought by John Doe, on a demise, 
from the orphans of Obediah Osteen ; one from James Mims 
and his wife, and Turner Hall and his wife; and one from 
Alfred Kersey, and Griffin Smith, against Richard Boe, 
casual ejector, and Jesse C. Hill and Charles Coney, tenants 
in possession, to recover lot of land, number eighty-five, in 
the first district of Lee county. 

The defendants pleaded the general issue, and the statute 
of limitations. 

Pending the action, both the tenants died, and, by consent, 
Benjamin Green, as administrator of John Whitsett, de- 
ceased, was made a party in their stead, and James Coney, as 
administrator of the said Charles Coney, deceased, was made 
co-defendant. 

On the trial of the case, in the Court below, the plaintiff 
read in evidence, a grant from the State of Georgia to Obe- 
diah Osteen's orphans, and proved that Sarah and Mar>' 
Osteen were the orphans mentioned in the grant, and that 
Mary Osteen married James Mims, in the year 1831, and 
that Sarah Osteen married James Hall in the year 1834 ; 
that the tenants, sued as such, were in possession of the land 
in dispute at the time the action was commenced, and that 
the land lies in Lee county; that there are seventy acres of 
land cleared on the lot, and that, for four or five years imme- 
diately preceding the trial, the land was worth, for rent, four 
or five dollars per acre by the year. 

Plaintiff also read in evidence a deed from James Mirus, 



MACON, JANUARY TERM, 1861. 153 

Roe, casual ejector, and Green, adm'r, vs. Kersey ei al, 

convejisg the land in dispute to Alfred Kersey ; and also a 
deed from James Hall to Alfred Kersey for the land in dis- 
pate. 
Here the plaintiff closed. 

The defendant proved that Jesse C Hill and Charles 
Coney settled on the land as far back as 1843, and cleared 
some land on the lot, and had exercised acts of o>ynei*ship 
continuoasly, from that time to the commencement of the 
action ; that said Hill and Coney held under, and as the 
tenants of, John Whitsett; that the first clearing was done 
on the lot in 1844 ; that the defendants had an original bond 
for titles, dated the 15th of January, 1840, purporting to 
have been executed by Thomas S. Gill, conditioned to make 
Samuel Nixon a good and sufficient warrantee title to said 
land, upou the payment, by Nixon, of five hundred and fifty 
dollars ; that said bond was attested by James McCleland 
and John J. E. Gregory, both of whom, by reputation, were 
dead; that said bond was given to Frederick H. West, Esq., 
as counsel for defendants in this action, and was destroyed by 
fire at the time the Court House in Lee county was burned, 
the oflBce of said West being, at the time, in the Court house ; 
that Nixon bought the land for John Whitsett from the said 
Gill, and delivered the bond to Rebecca Whitsett, the sister 
of said John Wliitsett, by his direction ; that at the time the 
bond was given, it was agreed, between Gill and Nixon, that 
Gill should come to Nixon's house in December or January, 
after the trade, and get the purchase money, and make the 
title to John Whitsett, but that Gill died before the time, and 
did not come; that when Nixon left the bond at Whitsett's 
liouse with his sister, he received from her, by Whitsett's 
direction, five dollars, which was all the consideration ever 
woeived by Nixon ; that Alfred Kersey went to Nixon, and 
by representations, induced him to believe that neither Whit- 
sett's administrator nor heirs were sotting up any title to the 
land, and that one Coney was in possession, and urged Nixon 
to sell the land to him, promising not to hold him respon- 
sible for any failure of the title. Under these circumstances, 
and not knowing that Coney was Whitsett's tenant on th^ 



SUPREME COURT 



i''^;.c». Kereey eJoI- 



.■■,-^(i received ten dollaw, 

Roe, casual ejectoi' ' ^ ;,.-;^nd warrant therefor ; that 

1. In an action of < '"^'''^ assignment of said bopd to 

tract of land in J.'jf' '^ Ai's notes to Gill for tlie laml, 

ft»ail C, the aer ' j^v'^/^mained unpaid ; that Whitsett 

the bond to h' , ^>/-^ney when he got a title. 

'^'ejtotl^nr'^^ ' - ^^<P' '" evidence, a copy of the Iwnd 

^ ivitli the contents proven, the eiecu- 

Eject' ; admitted. 

AlJ/E- f'ji'^' ]oa 1""''^' ^^^ Court repelled the bond as evi- 

/(^i-^^od that it furnished no color of title to 

T 'V'^^MDonts, and counsel for defendant excepted. 

fro '^P^l'jff jDtroduoed some proof that created a conflict 

a' p'^ '^ovy ^ *o *^^ tiwfi t'"''^ Coney'8 occupancy of 

)» (A'j^njenced, and it also appeared in evidence on ibe 

i^"ttJo'"* W'hitsett called on Willis A. Hawkins, Esq., 

tri*'''^ 0^1850, and prop<»ed to give him three hundred 

in' to bay up the title of Osteen's orphans to thelaad. 

^ tclio^ was oommenced 17th May, 1864. 

fie t^sti^ony being closed, the presiding Judge chai^ 

Jury: "That even though they should believe that the 

I feufJa"'^ ^^^ \ieea in possession of the land in dispute for 

ggveay^^i holding adversely to the plaintiff, yet such pos- 

^ion, unless under color of title, did not constitute a good 

title under the statute of limitations; and that the bond fot 

titles, from Gill to Nixon, was not a color of title for tlw 

defendants." 

The jury returned a verdict in favor of the plaintifi& for 
the premises in dispute, and $700 00, for mesne profits, with 
cost of suit. 

The plaintiffs in error seek a reversal of the judgment, 
on the ground that the Court erred in repelling the copy- 
bond, and in charging the jury as before staf«d. 

Slaughter & Ely and Vason & Davis for plaintiffii in 
error. 

Wills & Haweins for defendants in error. 



MACON, JANUARY TERM, 1861. 165 

Roe, casual ejector, and Green, adm'r, vs. Kersey ei al. 

By the Cburt, — Jenkins, J., delivering the opinion. 

There are two exception's to the judgment of the Court 
below, and the case presents the anomaly of error assigned, 
first, in the rejection of a document offered in evidence, and 
secondly, in the charge given to the jury, as to the effects of 
that very document upon the' rights of the parties. Never- 
theless, we have the certificate of the presiding Judge, that 
the bill of exceptions is true, and must take the case as we 
find it. 

The defendant below sought to defend himself by posses- 
sion, under [color of title. As color of title, he offered, in 
evidence, a bond for titles to the land in dispute, from one 
Gill to one Nixon, conditioned to make titles to Nixon, upon 
the payment of the purchase-money. There was evidence 
on the trial that Nixon bad, by arrangement between him- 
self and Whitsett, (the defendant's intestate), bargained for 
the land, with Gill, for Whitsett, but had given his own notes 
for it, and taken a bond for titles to himself ; that he had 
paid a part of the consideration money, and that his notes 
were still out for the remainder ; that Whitsett had paid 
him $0 00 only, and that he had never assigned the bond to 
Whitsett ; that Nixon had never been in possession of the 
land, and that the parties in actual possession were the ten- 
ants of Whitsett. 

This bond, or a copy of it, was the document offered and 
rejected by the Court, as color of title in Whitsett's admin- 
istrator. The Court rejected it, because " it furnished no 
color of title to Whitsett, or his tenants ;" and so, also, he 
charged the jury. 

We consider (as covering both exceptions) the question, 
whether this bond for titles was available to Whitsett's rep- 
resentative as color of title in law ? 

Color of title cannot rest in parol. There must be a doc- 
ument of some sort produced, to make color of title. That 
document must, upon inspection, evidence some right, or 
color of right in the party seeking to use it. A cannot 



156 SUPREME COURT OF GEORGIA. 

Patterson et al. , vs. Hickey. 

show color of title in himself, by introducing a deed from B 
to C. 

A bond for titles may be a color of title, but it can only 
give color to the obligee, or to his assignee. Here Nixon 
was the obligjee, and he never assigned the bond. Whitsett 
never acquired title in the bond ; how, then, can the bond be 
color of title to him? But, it is said he had an equity in 
the bond, growing out of the facts, that Nixon bargaiued for 
him, and that he had paid Nixon $5 00. 

The reply. is, that an equity, to be available in such case, 
must be a perfect equity. Whitsett evidently had no per- 
fect equity, in this matter, against Nixon. This, he could 
only acquire by the payment, to Nixon, of the purchase- 
money, which he had not done. As to any equity against 
Gill, the obligor, that is still more imperfect. It does not 
appear that Gill knew him in the contract at all. To the 
assertion of a right under the bond, against Gill, two things 
are necessary, first, the payment of the entire purchase-money 
to Gill ; secondly, the assignment of the bond by Nixon. To 
allow an imperfect equity, under a bond for titles, resting in 
parol, to establish a color of title, as against a party showing 
paramount paper title, would be stretching the doctrine quite 
too far. 

Judgment aiSrmed. 



Patterson d aJ,, v8. Hickey. 

Where the question is revocavit vel norif parol evidence, as to the acts 
and declarations of the test-ator, are admissible, although made at any 
time between the making the will and the death of the testator. 

Issue o£ devisavat vel non, in Chattahoochee Superior Court. 
Tried before Judge Perkins, at the May Term, 1860. 

The facts and questions in this case, as gathered from a 
somewhat meagre record, are as follows : 



MACX3N, JANUARY TERM, 1861. 157 

Patterson et al,i as, Hickey. 

On the 31st day qf March, 1854, James Hickey executed 
a will, disposing an estate, consisting of lands, negro slaves, 
and choses in action, worth, in the aggregate, $50,000 00, or 
more. The record contains no copy of the will, and its pro- 
visions are, therefore, not given. At the time the will was 
executed, the testator requested the witnesses to keep it 
secret, giving as a reason therefor, that if its provisions were 
known, it might produce hard feelings, and that he might 
not then die, and also might thereafter wish to change his 
will. Contemporaneous with the execution of the will, there 
were difficulties existing, and lawsuits pending between the 
testator and Robert C. Patterson, the husband of his deceased 
(laughter, and the widows of two of his deceased sons, relat- 
ing to some land and negroes received by his said sons in 
their lifetime, and by said Patterson in the lifetime of his 
wife, from the said testator. The said sons and daughter of 
testator left children surviving them. Besides these grand- 
children, the testator had one son, James B. Hickey, and one 
daughter, a Mrs. Jones, living at the time the will was made. 
Between the time of making the will and his death, in 1859, 
the testator largely increased his property, and the lawsuits 
between him and his grand-children, were all compromised 
and settled, and friendly relations between him and his son- 
in-law and daughters-in-law were fully restored. The tes- 
tator died, and the will, made as aforesaid, was found in a 
bureau drawer, separate from the testator's other papers, and 
in a place where he did not usually deposit his papers for 
safe keeping. The will was written on one whole sheet of 
paper, and when presented for probate, it was in two pieces, 
and had the appearance of having been cut, or torn, in two 
pieces. The draftsman who wrote the will, and who was one 
of the attesting witnesses to the same, testified that, in his 
opinion, the will was not worn in two pieces, as the edges of 
the paper were even and smooth, and did not look as if i^ 
had been worn. Although the will was in two parts, no 
word or sentence of the same was changed, obliterated, or 
tlostroyed. The testator's wife, his son, James B. Hickey, 
and his daughter, Mrs. Jones, were all present when the will 



158 SUPREME COURT OF GEORGIA. 

Patterson et alj^ vs. Hickey. 

was executed. The testator's wife stated what property she 
wanted, and how it should be given, and the will was written 
in accordance with her wishes, which were assented to and 
approved by the testator. So it was with the property given 
to Mrs. Jones. 

After the testator's death, the will was propounded, and 
offered for probate, and recorded by James B. Hickey, and a 
caveat was filed by Robert C. Patterson and others, in behalf 
of the children of the testator's deceased sons and daughter. 
On the trial of the case, the facts before stated appeared in 
evidence, together with a good deal of testimony as to what 
and how much property had been given by testator, in his 
lifetime, to his children. It was also proven that the tes- 
tator, in speaking of the will to his wife, said : " Old lady, 
that is a thing I thought I never would do; the laws of 
our country was as good a will as I wanted." 

In the progress of the trial, the caveators proposed to prove 
that after the will was made, the testator said, *^ that he in- 
tended his children and grand-children should share equally 
in his property." 

Also, " that it was a part of the understanding in the com- 
promise of the law-suits, that the testator would make all his 
children equal in the division of his property." 

Also, " that the testator agreed, in order to bring about a 
settlement of the law-suits, he would make his property 
equal among his grand-children." 

Also, " that the testator promised Mary C. Hickey, the 
widow of his deceased son, Alexander C. Hickey, that, at 
his death, he would give her children an equal share of his 
property with his other children, and that this promise 
caused the said Mary C. Hickey to make a compromise of 
the law-suit then pending between the testator and herself^ 
and that this conversation and promise took place in 1856/* 

Also, '' that the testator said that he knew what he bad 
given his other children, and that he would keep an account 
of it, and when he was done with his property, he intended 
that all his children should have an equal share." 

Upon objection made thereto, by counsel for the pro- 



MACON, JANUARY TERM, 1861. 169 

Patterson et al., vs, Hickey. 

poander, the presiding Judge repelled all the evidence afore- 
said, offered hj the oaveatorSy to which decision said caveators 
excepted. 

The jury returned a verdict for the propounder, and the 
\nll was acoordingly set up. 

The plaintiffs in er):or ask a reversal of the judgment^ on 
the ground, that the presiding Judge erred in excluding the 
testimony offered by caveo^or^^ as aforesaid. 

Johnson & Sloan for plaintiffs in error. 

Holt & Hutchins for defendant in error. 

By ihe Court — ^Lumpkin, J., delivering the opinion. 

i2erooari^ vel nan is similar to the question of devisavat vel 
non, and is a question of fact for the consideration of a jury. 
Powell on Devises, 6, 34 ; 3 Wilson, 508. Ad questiones fadi 
respondent juraiorea. 

Was the Court right in excluding from the jury the decla- 
rations and acts of the testator, for the purpose of showing 
the quo antmo with which the will propounded for probate 
was torn or cut in two. 

The will was kept by the testator ^fter it was written ; 
and found in the drawer of his secretary, torn or cut asunder. 
The presumption of the law is, that the act of mutilation 
was done by the testator; and, if done unintentioually by 
him, or by the fraud, or . accident of some other person, it is 
incumbent upon those claiming under the will to prove it. 
Those setting up title, under a will, mu^t show,. affirmatively, 
a valid existing will, uncancelled ^t the time of the testator's 
death. The instrument has no force or effect till the death 
of the testator. It is said to be ambulatory till the testator 
<Jie8. Until then, the party making it has the power to can- 
cel or revoke it. "The general rule is, that a will once 
cxecQted remains in force, unless revoked by some act done 
»7 'he testator, animo revocandi — ^such as burning, canceling, 
J»akiDg a new will, or the like."— Per Sir John Nicholl, in 
Johnston vs. Johnston, 1 Pbillimore, 446. 



160 SUPREME COURT OF GEORGIA. 

Patterson et al,, vs. Hickey. 

The question of revocation, I repeat, then, is one of evi- 
dence. Here the execution of the will is established. It is 
found, after the testator's death, but in an unusual place, and 
not where he was in the habit of keeping his valuable papers. 
It is produced for probate, cut or torn in two pieces. The 
law imputes the act to no other person than the testator. In 
the absence of proof, does not the law presume that the tes- 
tator destroyed it — animo revocandif And, in such a case, 
at leasts will not the caveators be permitted to introduce the 
parol declarations of the testator to confirm the legal pre- 
sumption deducible from the facts themselves ? 

But call this, if you please, an equivocal act. Shall not 
the testimony of the witnesses, which was offered and reject- 
ed, be received for the purpose of ascertaining the intent with 
which this will was mutilated ? 

This question is not controlled by authority. Courts dis- 
tinguislied for their learning, and eminent Judges, have dif- 
fered upon it. Not concealing the fact, that my leaning is 
always in favor of admitting rather than rejecting testimony, 
I cannot concur with the circuit Judge in ruling out the evi- 
dence. 

AH the Courts agree, that declarations made prior to, or 
at the time of the execution of the will, or its revocation, are 
admissible. The judicial mind, both in England and in this 
coi^ntry, is divided as to whether it should not be so restricted. 
In some.of the earlier English cases, as in Nelson against 
Oldfield, (2 Vernon, 76,) this kind of evidence was admitted 
without question. 

In Brady vs. Cubitt, (Douglas, 49,) Lord Mansfield laid 
it down, that the presumption of a revocation was liable to 
be rebutted, (and of course sustained,) by " every kind of em- 
denceJ' This is very strong, and BuUer, J., in the same 
case said, that implied revocations must depend on the cir- 
cumstances, at the time of the testator's death ; which cir-* 
cumstances, I presume, cannot be known without a resort to 
parol testimony. 

In the case of Warren vs. Matthews, (Vesey,) evidence 
was received in opposition to the probate of a will, |hat si 



MACX)N, JANUARY TERM, 1861. 161 

- — ■ — — — I ■ ™ 

Pattersen et al, , vs, Hickey. 

subsequent unfinished will was made by the testator^ and of 
many declarations of the testator, showing he was not satis- 
fied with the will before the Court. All the testimony was 
received and relied on without opposition. 

More modern cases, at least some of them, have refused 
to allow this species of proof. (Provis vs. Reed, 5 Bingham, 
435). In Jackson, ex dem.^ Coe, and others, against Kniffin, 
2 John's Rep., 31, parol evidence of the revocation of a will 
was held to be inadmissible. Thompson, Kent, and Liv- 
ingston concurring, Ambrose, Spencer, and Tompkins dis- 
senting ; and the Supreme Court decided that this evidence 
was properly rejected. (6 Cowen's Rep., 382). Chancellor 
Walworth, in the case of Betts vs. Jackson, 6 Wendell, 187, 
thus expresses himself upon this doctrine : '^ In the investi- 
gation of the other questions in this cause, I have necessarily 
been compelled to look into this subject, so far as to see there 
is sufficient doubt as to the correctness of the Supreme Court 
decision on the point, to authorize them to direct a re-argu- 
ment of the question, if it shall again come before them. 
The frequent insincerity of testamentary declarations, and 
the great danger that the meaning of the testator may be 
mistaken or misrepresented, when he is no longer able to 
explain what he meapt, must, in general, render such declar- 
ations of little value as evidence. But they are sometimes 
received to explain a latent ambiguity, or to ascertain the 
intention of the testator, in case of doubts arising -from an 
eqalvocal act; and the uniform practice of the English testi- 
roentary Courts, has been to receive such declarations, to 
strengthen or repel the presumption, that a will once legally 
executed, but not foubd at the death of the testator, (or can- 
celed) had been destroyed by him. 

This question came before Judge Story, in Smith vs. Fen- 
ner, (1 Gall. Reports, 169), who held that the declarations of 
the testator, before and after the time of making a will, (or 
revoking one), and, afterwards, if so made as to be a part of 
the res gestce^ are admissible to show fraud in obtaining the 
will, but not declarations at any distance of time after the 
will has been executed, especially where the will has always 

V0I4. XXXII — 11. 



162 SUPREME COURT OF GEORGIA. 

Pattersoa et aZ., va. Hickey. 

been in the testator's possession. (See^ also, 2 Mass. Rep., 
507, and other cases to the same effect). The cases of Jack- 
son and KniiSn, in 2 Johnson, and Smith and Fenner^ 1 
Gall., are considered the leading authorities to sustain the 
view held bj the circuit Judge upon the question under con- 
sideration. 

Then, on the other side, we have Batey vs. Holman, exec- 
utor of Batey, (3 Hem. and Munf , 502), where, notwith- 
standing the Judges differed upon other points, they unani- 
mously held that j>aro^ evidence was admissible to show the 
situation of the testator and the quo animo, the cancellation 
was made. The Virginia cases are numerous upon this 
point. Cogbill vs. Cogbill, 2 Hen. and Munf. 467; Temple 
and Taylor against Temple, 1 Hen. and Munf., 478, and 
2ierby vs. Zerby, (3 Call., 334), are all strong precedents to 
the same effect. 

In 1821, fifteen years after Jackson, ex dem., Coe vs. Knif- 
fin, and nine years after Smith and Fenner, which, as before 
intimated, are the leading cases against this sort of evidence, 
the question involved in these cases was presented to the 
Supreme Court of North Carolina, who expressly adopted 
the opinions of Spencer and Tompkins, Js., in the first case^ 
thus repudiating the decisions of both the Supreme Court of 
New York and of Judge. Story, Both these cases, say 
Messrs. Gowen and Hill, (in note 194, p. 301, 3d volume of 
Phillips in Evidence), were before them, appear to have been 
sometimes in the hands of counsel, and were followed by the 
Judge at nisi priua. At the bar, great research and higb 
forensic talent were exhibited in the discussion, both upon 
principle and authority ; the main ground for the evidence 
being the admitted one, that declarations made by the owner 
follow from him to all who claim under him, along with 
descents, devises and sales. The evidence proposed was of 
repeated declarations made after the execution of the will, 
and consisted in stating its contents to be materially and 
utterly different from what they were. They were offered in 
connection with conflicting testimony upon the part of testa- 
mentary capacity. The evidence was resisted, as in Ne^v- 



MACON, JANUARY TERM, 1861. 163 

Patterson et al., V8, Hiekey. 

York, among other arguments, on the ground that it would 
violate the spirit of the North Carolina Statute of Revoca- 
tions, which also required (as the British statute) certain 
specified solemnities. 

On both sides, the English authorities, then extanty were 
fully cited and applied. On the whole, say the compilers, 
the arguments were learned and useful, and must have saved 
the Judges great labor upon this vexed controversy. The 
conclusion of the Court is thus strongly expressed: 

'^ To reject the declarations of the only person having a 

vested interest, and who was interested to declare the truth — 

whose fiat gave existence to the will, and whose fiat could 

destroy, and, in doing the one or the other, could interfere 

with the rights of no one, involves almost an absurdity; and 

(with due deference to the opinions of those who have decided 

to the contrary) we say — and not upon the ground of their 

being part of the res gestcB — for whether they accompany the 

act or not, whether made long before, or long after, the 

making of the will, is entirely immaterial as to their compe- 

teocy. Those circumstances only go to their weight or credit 

with the tribunal who is to try the fact/' After a further 

examination of the question, they add : " For these reasons, 

and those given by Judge Spencer, who, together with Judge 

Tompkins, dissented from the opinion of the Court, and 

because of the doubt which rested, for some time, on Judge 

Livingston's mind, we think we are bound to disregard the 

opinion of the majority of the Court, in 2 Johns. 31, and 

also the case in 1 Gall., 170." — (Reels, executors, vs. Reel, 1 

Hawks, 247, 268-'9.) % 

Again, in 1832, on the trial of an issue of diviaavet vel 
f^<>n, Judge Martin, at nisi prius, rejected the testator's 
declarations, made after the execution of the will. On mov- 
ing for a new trial, the question was treated as open and 
tininclyded in Reels vs. Reel, because there the testator died 
tefore the North Carolina statute of revocation passed, which 
was not till 1817. The statute being before the former 
decision, though after the will was made — a distinction not 
adverted to. Provis & Reed, 6 Bingham, was now cited b^ 



164 SUPREME COURT OF GEORGIA. 

■ - ' 

Patterson et oZ., vs. Hickey. 

counsel; in addition to Jackson vs. Kniffin and Smith & Fen- 
ner^ as an authority for excluding the proof. The Court 
declared that they had " deliberately considered the question 
anew ^^; " that the proof ofiTered was relevant to the point." 
The assertion that it may mislead the jury, is applicable to 
all evidence submitted to them. This is incident to our tri- 
bunals as constituted; and not peculiar to this species of evi- 
dence. 

It is said that the reasons for not hearing parol proof is, 
that there is not the ordinary security that it is true. This 
goes to the weight of the evidence. It is true^ there are 
many cases in which it would be entitled to but little weight; 
nay, but a few in which it would be entitled to any. Yet, 
if there be others^ in which it would subserve the cause of 
truth and justice, it must be heard, leaving its effects to those 
whose province it is to weigh it. I think there is little dan- 
ger in this, when the Court can aid the jury in pointing ont 
its legitimate tendency." 

I forbear to make further quotations from this "perspicu- 
ous and masterly " opinion of Judge Ruffin. I would gladly 
incorporate it entire, but. must content myself by referring 
to it as demonstrating conclusively, to my mind, the pro- 
priety, as well as safety, in receiving such evidence. 

Having thus, as briefly as I could, adverted to the convict- 
ing decisions upon this vexed question, James Kent and 
Joseph Story, men unsurpassed for legal Jearning, being 
arrayed against Ambrose Spencer and Thomas Ruffin, to say 
nothing of Spencer Roane, than whom abler common law 
Judges never presided in the Courts of this country, and dif- 
fering, as I do, from a worthy brother and associate, for 
whom and for whose opinions, I have the highest respect, I 
must say, that I have not a scintilla of doubt resting in my 
mind that the testimony excluded should have been received 
by the Circuit Court. . 

Judgment reversed. 



MACON, JANUARY TERM, 1861. 165 

Williams vs, Logan & Meara. 

Williams vs. Logan & Meara. 

1. Ttie Act of 30th December, 1847, (Cobb's Digest, 180), requires mar- 
nage settlementSi or agreements, executed previously to the passage 
of that Act, to be recorded, after its passage and publication, whether 
recorded or not. 

2. The registration of such conveyances, only, as are required by law 
to be recorded, operates as constructive notice to subsequent purchasers 
of the same property so conveyed. 

Trover in Bibb Superior Court, for a negro named Samp- 
son. 

The questions made in this case^ rest upon the following 
state of &ctSy agreed to by the parties : 

On the 20th of December, 1836, in contemplation of a 
marriage, which was afterwards consummated, a deed of 
marriage settlement was executed in the county of Chatham, 
then the residence of the husband, between John C. Hunter 
and Ann E. Aiken, by which the negro in dispute, with 
others, all brought into the marriage by the said Ann E. 
Aiken, were settled on the said John C. Hunter, the husband, 
and the said Ann E., the wife, and the survivor of them for 
life, and then to the children of the marriage. The property 
was conveyed by the deed, to three trustees, neither of whom 
was the husband or wife. The deed was attested by wit- 
nesses, one of wbom was Richard R. Aiken, and by him pro- 
bated before Edward G. Wilson, Deputy Clerk of Chatham 
Superior Court, on the 20th of October, 1841, and recorded 
io the Clerk's office of Chatham Superior Court, on the day 
of said probate. James Hunter and Charles Hunter were 
the only children of the marrii^. Mrs. Hunter died many 
years ago. Thomas J. Walsh, auctioneer, sold the negro in 
dispute, at public out-cry, by the authority and direction of 
John C. Hunter, to pay certain advances made by Walsh to 
the said John C. Hunter, to pay for the board and schooling 
of the said children, James and Charles. At the sale, which 
occurred in 1852, one J. C. Trowbridge was the purchaser, 
to whom Walsh made a bill of sale. Walsh knew nothing 
at the time of the sale of any claim on the negro, nor did it 
appear that Trowbridge had any notice of any defect in the 



166 SUPREME COURT OF GEORGIA. 

Williams vs, Logan ft Meara. 

title. Walsh did not even know of the marriage settlement, 
but heard it of some two years after the sale. Walsh executed 
to Trowbridge his own bill of sale as auctioneer. Logan & 
Meara derived their title from Trowbridge. John C. Hun- 
ter died in 1858. Logan & Meara were in possession of the 
negro in February, 1858, and on the 8th of February, 1859, 
and the negro died in the summer of 1859. 

Under the instruction and authority of the plaintiff, Wil- 
liams, acting as the next friend of the said minor children, 
James and Charles Hunter, a demand for the negro was 
made on the defendants, Logan & Meara, by Mr. Lanier, and 
they refused to give up the negro. This demand was made 
before the suit was brought, which was on the 8th of Febru- 
ary, 1859, and the refusal was general, and placed on no 
particular ground. 

Upon the foregoing facts, the following questions were 
submitted for adjudication, to-wit : 

1. Did not the death of the negro release the defendants 
from tall liability, except for the hire of the negro, from the 
death of John C. Hunter, and the costs ? 

2. Can the defendants reduce [the amount of the recovery, 
by proving the negro was diseased at the time the demand 
was made, and that he subsequently died ,of such disease ? 

3. Was the record of the marriage settlement sufficient ? 
Ought it not to have been again recorded, under the Act of 
the 30th of December, 1847, to give it validity, and to 
authorize a recovery upon it in this case? 

4. Does the evidence, in this case, show such a conversion 
of the property in dispute as to authorize a recovery ? 

Lai^xeb &^ Andeeson for the plaintiff. 

H. K. McKay for the defendant. 



MACON, JANUARY TERM, 1861. 167 



Williams vs. Logan & Meara. 



Br/ the Court. — Jenkins, J., delivering the opinion. 

1. The consent, in this case, presents several questions for 
the consideration, of the Court and among them, this: 
'' Whether the record of the raarriage settlement ^as suffi* 
cient, or whether it ought to have been recorded again, under 
the Act of 30th December, 1847, to give it validity, and 
aathorize a recovery upon it in this case." In our view of 
this qaestion, it must control the case, and we, therefore, 
deem it unnecessary to consider the others. 

The question is not as to the validity of the settlement, as 
between the parties to it, and privies ; but whether the record 
of it, anterior to the Act of 1847, was valid as constructive 
notice to Trowbridge, and those claiming under him ; the 
defendants being in that* category. 

The plaintiff's counsel, in the very interesting and ingeni- 
ous argument presented, assumed two positions on this point. 
FirHy that by a proper construction of the Act of 1847, it is 
unnecessary to record, a second time, a marriage settlement, 
which had been recorded prior to its passage, « such prior 
record, answering by relation, its requisitions. We cannot 
assent to this proposition. The first section of the Act refers 
exclusively to settlements made prior to the passage of the 
Act; and its language is equally clear and peremptory. It 
directs that all such settlements, or i^reements, ''shall be 
recorded within twelve months afler the passage and publi- 
cation of this Act, in the Clerk's office of the Superior Court 
of the county of the residence of the husband.'' 

It must be presumed that the Legislature knew, when 
passing this Act, that many existing settlements had already 
been rcorded. Had they intended that such record should 
satisfy the requirements of the Act, the insertion of three 
words would have expressed that intention. Those words 
not having been inserted, and no allusion being made to a 
prior registration, we are constrained to infer the absence of 
SQch intention. They undoubtedly intended to prescribe a 
new rule ; they had not previously required such convey- 
ances to be recorded. 



168 SUPREME COURT OP GEORGIA. 

Williams vs. Lagan & Meara. 

Their new rule would be vastly more facile and certain in 
its operations^ by limiting the researches of inquiries into 
title, to the date of the rule itself; and this olyect is accom- 
plished by holding that the Act of 1847 requires all mar- 
riage settlements or agreements, whether previously regis- 
tered or not, to be recorded within twelve months after the 
passage and publication of the Act. The language of the 
statute is not at all ambiguous; and it can only be made to 
meet the exigencies of the plaintiff's case, by interpolating 
words. This we are not authorized to do. 

2. But secondly, it is insisted that by the Act of 1819, 
(Cobb's Digest, 168), or by the Act of 1827, (Cobb's Digest, 
172), the record of marriage, settlements is authorized^ and 
that this is sufiBcient to make such record constructive notice, 
to subsequent purchasers, of the settlement so recorded. In 
section 403, vol. 1, of Story's Eq. Jur., the author states that, 
in America, '* it is uniformly held that the registration of a 
conveyance operates as constructive notice to all subsequent 
purchasers of any estate, legal or equitable, in the same prop- 
erty." But in the next section, 404, the learned author 
expressly limits the operation of this American rule to such 
conveyances only " as are authorized and required by law to 
be registered, and are duly registered in compliance with 
law. He then adds : '^ if they are not authorized or required 
to be registered, or the registry itself is not in compliance 
with the law, the act of registration is treated as a mere 
nullity ; and, then, the subsequent purchaser is affected only 
by such actual notice, as would amount to a fraud " — citing 2 
Sch. and Lefn, 68 ; 1 Sch. and Lefr., 157 ; 4 Wheat, 466 ; 
1 John. Ch., 300 ; 2 Binn., 40. The learned counsel uses the 
second or negative proposition in section 404, to explain the 
first or affirmative proposition, and construes the whole sec- 
tion to mean, that if a conveyance be either authorized or 
required to be registered, the r^istration is good, as construc- 
tive notice to subsequent purchasers. He reads the native 
proposition thus: '' If they be neither authorized nor required 
to be registered, the registry is a nullity, is ineffectual as no- 
tice," etc. He then holds that the converse is true, viz: ** If 



MACX)N, JANUARY TERM, 1861. 169 

Williams vs. Logan & Meara. 

they be either authorized or required^ etc., the registry is good 
as notice/' etc. But this criticism upon the text, I think is 
illogical. The author proceeds to state, first, affirmatively, 
in what cases registry will operate as constructive notice; 
and be thus puts it : " If they (the conveyances) be author- 
ized and required by law to be registered, and be actually 
roistered, the registration is constructive notice," etc. Here 
he uses the copulative conjunction, intending that there must 
be both authorization and requirement of law, etc., to make 
the registration effectual as notice. But when, next, he pro- 
ceeds to state the negative proposiiion, to specify in what 
cases registration will not be valid as notice, he uses the dis- 
junctive conjunction ; be says : " If they (the conveyances) 
are not authorized OB required to be registered," etc. It is 
as if he had said, ^^ if they be not authorized to be registered, 
or if they be not required to be registered, in either event, 
the registration is a nullity, as coastructi ve notice. Thus, and 
thus only, can the two propositions be made to consist. luas- 
mnch as to require by law the registration of a conveyance, 
is to authorize it, the rule may be thus briefly stated, " The 
registration of such conveyances, only, as are required by law 
to be registered, is constructive notice to all subsequent pur- 
chasers," etc. 

The marriage setlement, in this case, not having been 
recorded, as required by the Act of 1847, and there being no 
proof of actaal notice to the purchaser, under whom defend- 
ants claim^ our opinion is that the plaintiff cannot recover. 



170 SUPREME COURT OP GEORGIA. 

Ball, ez'r, vs, Wallace and Wife. 



N. 



Ball, ex'r and adm'r vs. Wallace and Wipe. 

1. The plaintiffs were the coheirsi or distribatees, and their representa- 
tives of the grantor, who had died leaving no children. Meld : That 
the paper was a gift by the grantor to those persons, who, like himself, 
were heirs to his father, reserving a life-estate in the property himself; 
the estate created, subject to be defeated by the'death of grantor leav- 
ing, at his death, child or children surviving him. 

2. When a deed of gift contains grantees so designated or plunly referred 
to as to be easily ascertained, a subject- matter, and a time when the 
gift is to take effect, there is sufficient certainty to require the Court to 
give it effect. 

8. A gift, although voluntary, is good, and may be enforced, if it is an 

executed and not a mere executory one. 
4. No particular form of words is necessary to make a conveyance ; so 

that the words used indicate an intention to convey it, is sufficient. 

Trover, in Sumter Superior Court. Tried before Judge 
Allen, at the October Term; 1860. 

James Ball, as the administrator of James Gray, and Sea- 
born Gray, and as executor of Sarah Powell, brought an 
action of trover against Cargil Wallace, and his wife, Maiy 
Wallace, to recover damages for the alleged conversion by 
the defendants of a negro named Peter. 

On the t^ial of the case, the plaintiff proved that the 
defendant, Mary Wallace, was the widow of Samuel Gray, 
deceased, and that she intermarried with the defendant, Car- 
gil Wallace ; that Samuel Gray died about the first of Jana- 
ary, 1858, leaving no child or children, and that he had no 
child or children in his life time ; that said Samuel Gray was 
the son of James Gray, of Warren county, deceased, and 
brother to the testator and intestates of the plaintiff, and that 
said intestates, testator, and Samuel Gray, were all the heiTs 
of James Gray at the time of his death ; that the negro boy, 
Peter, was worth $700 00, and was worth, for hire, $150 00, 
and was hired out for that sum by the defendant, in the year 
1859 ; that Samuel Gray, since 1840, has not been of strong 
mind, and from 1850, up to the time of his death, he drank 
a great deal of whisky, and his mind grew weaker and 
weaker, until he died. 



MACON, JANUARY TERM, 1861. 171 



Ball, ez'r, vs. Wallace and Wife. 



The plaintiff also offered in evidence a paper, duly attested 
by two witnesses, one of whom was a Justice of the Peace, 
and which was recorded in the Clerk's office of the Superior 
Court of Warren county, Georgia, on the 22d of June, 1822, 
and of which tlie following is a copy : 

" Gboroia, Warbek County, 
<< October, 19th, 1819, 
'* Received one negro boj, named Peter, rained at seyen hundred dol- 
lars, the same being a part of my proportionable part of mj father's 
estate. Given under my hand, the day and year above written. And the 
boy for which I have given this receipt, if I should die without child or 
children, ta to retam to the other heirs. 

"SAMUEL GRAY." ^ 

Upon ol^ection being made thereto, the presiding Judge 
repelled the said paper as evidence, on the ground that the 
same was uncertain, voluntary, and contained no words of 
conveyance, and then awarded a non-suit against the plain- 
tiff 

This decision is the error alleged in the records in this case. 

Willis A. Hawkins for plaintiff in error. 

B. Hill, (representing McCay), for defendant in error. 

By the Court — ^Lyon, J., delivering the opinion. 

Some of the well settled rules for the exposition of deeds 
and other writings are, that the constructions ought to be as 
&vorable and as near the apparent intent of the parties as 
possibly may be, and as the law will permit ; that too much 
regard is not to be had to the natural and proper signification 
of words and sentences, to prevent the simple intention of 
the parties from taking effect ; for that the law is not nice in 
grants, and, therefore, it doth often transpose words contrary 
to their order to bring them to the intent of the parties. 
WiUes Rep., 332 ; Shep. Touch., 88. That all the words of 
the deed, in construction, be taken most strongly against him 
who doth speak them, and most in advantage of the other 
party. Shep. Touch., 87. That the grantee be sufficiently 
named, or, at the least, set forth and distinguished by some 



172 SUPREME COURT OF GEORGIA. 

Ball, ex'r, o«. Wallace and Wife. / 

circumstantial matter. /&., 235. Dedi d txmcessi be the most 
apt words for'all kinds of grants, yet, it may be by other 
words and the grant as good as those words — no formal words 
are necessary. lb,, 232. That the judges ought to be curious 
and subtile to invent reasons, and make acts effectual accord- 
ing to the just intent of the parties. Willes Rep., 684. 

1. Looking at this paper, then, in the sense of these author- 
ities and rules, with a view to give effect to the intention of 
the grantor, if it can be done consistently with the law, we 
are constrained to the conclusion that it was the intention of 
Samuel Gray, the maker, to vest the title to this negro, by 
this paper, in his co-heirs at law of his father, who, like 
himself, took distributive shares of that estate, in case he 
died without child or children. In other words, it was a 
gift to the persons answering that description, reserving a 
life-estate in himself, subject to be defeated by his leaving 
child or children at his death. Whatever may have been 
the inducement to such agreement or gifl ; whether on ac- 
count of a general agreement for distribution of the estate of 
the father by all the heirs, on these conditions, or wheth^ 
the property of the estate for distribution was subject to such 
a limitation, or whether he was moved thereto by his mere 
volition, is wholly immaterial. That, to our mind, is the 
intention manifested by this instrument, the grantor using 
the words " to return to " in the sense of to vest irhj as the 
simplest mode of expressing his purpose and effecting his 
intention, and as there is nothing in this intention incon- 
sistent with the rules of law, the Court must give effect 
thereto. 

The Court below ruled out the paper as evidence of title 
in the plaintiff, and awarded a non-suit on three grounds : 

2. — 1. That the paper was uncertain ; why, we cannot 
see. There is a grantor; grantees plainly referred to, and 
designated so that they are > easily ascertained, a subject mat* 
ter of gift, and a time when the gift was to take effect in the 
grantees. 

3. — 2. That it was voluntary. Concede that this is so * 
still, the gift is good. This is not an executory agreement^ in. 



MACON, JANUARY TERM, 1861. 173 

MoDtgomery and another vi, Morris. 

hich a mere inteDtion is expressed to make t])e gift^ but an 
:ecuted one, that vests the title, and nothing more remains 
I be done to complete it. ' 

4. — 3. That the paper contains no words of conveyance, 
re have already seen 'that no particular form of words of 
mveyance is necessary, so that the words used indicate an 
itentioD to convey, and that the words in this paper are 
ifficient for that purpose; for these reasons, we think the 
)ourt below erred in rejecting the paper tendered as evidence 
f title in the plaintiff, and in granting a non-suit. 
Judgment reversed. 



Montgomery and another v9. Morris. 

I. Te3tiinonj of a witness, taken by interrogatories, is not obnoxious to 
the Act of 2l8t February, 1850, "To regulate the testimony of Attor- 
neys at law,'' when it does not appear to the Court that the witness 
was the attomey-at-iaw of the party against whom the evidence is 
sought to be used, or that the facts testified to were acquired. by him 
daring the existence, .and by reason of the relation of attorney and 
client. 

1 M. agreed with M. for the purchase of her land and negroes at the 
price of $8,000 00, executed a bill of sale to him for the negroes, and 
delivered to him her title deeds for the land, retaining possession of 
the property until the purchase- price of the property was settled ; sub- 
sequently, to induce M. to cancel the trade, give up the bill of sale to 
the negroes, and the title deeds to the land, M., the vendor, and 
snother, executed to M., the purchaser, their notes for the sum of 
$450 00, and the bill of sale and deeds were returned to M., and the 
trade cancelled. Held : That this was a sufficient consideration for 
the notes so given, although the bill of sale and deeds might have been 
fraudalently obtained in the first place. 
^ When a fraud has been committed by one upon another, and it has 
Wq settled by the parties, with a full knowledge thereof, such settle- 
ment is conclusive. 

Certiorari from Bibb Superior Court, Decided by Judge 
Umar, at the November Term, 1860. 

The facts of this case are substantially as follows : 



174 SUPREME COURT OF GEORGIA. 

Montgomery and another vs. Morris. 

James S. Morris bargained with Nancy Montgomery and 
Mary Duncan for a plantation in the county of Baldwin, and 
five negroes, for which Morris agreed to pay $8,000 00. Pur- 
suant to the agreement and contract, Morris paid over to 
Mrs. Montgomery and Mrs. Duncan some money, and they 
turned over to him the title deeds of the plantation, and MrSw 
Montgomery executed and delivered to him a bill of sale for 
the negroes, which were then levied on by virtue of sundry^. 
faa, against Mrs. Montgomery. Morris was to pay off the 
Jl.fa8, and all other demands against Montgomery and Dun- 
can, and then pay the balance of the $8,000 00 to them. 

On the day of sale, and when the negroes were offered for 
sale, Morris announced to the sheriff and bystanders, that he 
had the means, and was ready to pay off all the fi, fas. and 
all other demands against Montgomery and Duncan ; but, 
for some cause, the sheriff and plainti& in fi. fas. refused 
then to receive the money, and the sale was postponed. This 
occurred on the first Tuesday in January, 1860. 

It was then agreed, that so soon as Morris returned from 
a trip out West, which he was then about to take, that he 
should return to Milledgeville and get the negroes and bring 
them away. ' . 

Morris paid no money, except what he advanced to Mont- 
gomery and Duncan, nor was there any deed to the plantation 
executed to him. 

After Morris returned from the West, and before he went 
back to Milledgeville, Mrs. Montgomery and Mrs. Duncan 
called on him at his house in Marietta, when it was agreed 
that Morris should give up the bill of sale and title deeds, 
and that the whole sale should be cancelled, in consideration 
of which, Mrs. Mongomery and Duncan paid Morris some 
money, and also executed and delivered to him nine promis- 
sory notes, signed by them, for $60 00 each. 

Afterwards, Morris sued out attachments on these notes, 
returnable to a Justice's Court of Bibb county, and Mont- 
gomery and Duncan pleaded that the notes were without 
consideration. 

On the trial of these cases in the Justice's Court, the depo^ 



MACQN JANUARY TERM 1861. 175 

Montgomery and another vs. Morris. 

sitioDS of Wm. McKinlej were read in evidence over the 
objection of plaintiff's counsel, that the depositions disclosed 
facts, of which the witness obtained a knowledge during the 
existence, and by reason of the relation of attorney and client 
between the witness and plaintiff. 

The jury, in the Justice's Court, found for the defendants. 

The cases were then carried to the Superior Court of Bibb 
county, by certiorari. 

The Superior Court sustained the certiorari, and ordered 
a new trial, on the ground that the Justices erred in admit- 
ting McKinley's testimony, aqd on the ground that the jury 
found contrary to evidence, as to a want of consideration in 
the notes. 

This judgment is the error alleged. 

Lanieb & Anderson for plaintiff in error. 
Stubbs <& Patton contra. 

By the Court. — Lyon, J., delivering the opinion. 

« 

Two questions are made by the record in this case : 

1. Whether the interrogatories of the witness, William 
McKinley, were admissibleas evidence? 

2. Whether there was sufficient evidence of a consideration 
in the notes which were the foundation of the suits in the 
Jostioe's Court, to authorize a recovery on them by the 
plaintiff? 

(1.) We think the interrogatories were admissible as evi- 
dence. The objection to them is, that the witness, McKin- 
lej, was the attorney of Morris, and that his statements, or 
evidence, is in conflict with the Act of 2l8t February, 1850, 
" To regulate the testimony of Attorneys at Ijaw." The 
T^cord does not support the objection. It does not appear 
that the witness was the attorney of Morris, or that the facts 
sworn to by him were acquired during the existence and by 
^^^Bon of that relation, all of which is necessary to exclude 
^he testimony under that Act. As much was said in the 
argument as to the manner of this witness, we are constrained 



176 SUPREME COURT OF GEORGIA. 

Montgomery and another vs. Morris. 

to remark, in respect thereto, that in this,* the testimony 
was very objectionable — not enough so to require the Court 
to exclude the same from the jury, but sufficiently so to 
greatly impair its weight and credit before them ; and if a 
jury, under the circumstances, should wholly discredit evi- 
dence so given, we should never interfere with their finding 
on that account, however material and important the testi- 
mony may be. However well satisfied a witness may be, 
that the party against whom he is testifying is a desperate 
speculator and adventurer, trying to obtain an undue advan- 
tage, or is wrong upon the merits, it is not his business to 
adjudge these questions, or to thrust his opinions thereof on 
the tribunal whose business it is to try the case, but to state 
what he does know, as strongly as it exists, without that 
flippancy and bias for one of the parties that so evidently 
marks this testimony from one end to the other. 

(2.) As to the other question : AYas there sufficient evidence 
of a consideration in the notes before the jury to require 
them to find for the plaintiff? Or, to state the question 
more exactly : Was there sufficient evidence of a toant of 
cormderation in the notes, to justify the finding as made? 
And to this, we reply, that there was not. The only evidence 
offered as to the consideration of the notes, was that of the 
plaintiff, Morris, given in reply to interrogatories sued out 
for him specially, on the application of the defendants in 
the Justice's Court. The witness, McKinley, knew nothing 
of the giving of the notes, or of their consideration ; he 
testifies to certain negotiations by Morris for the purchase of 
the lands and negroes of Mrs. Montgomery, that occurred in 
Milledgeville, on the first Tuesday in January, 1860, and 
the facts that transpired at that time and place, in respect to 
the intended trade, within his knowledge. The notes ^vrere 
not given at that time, but subsequently, on the 17th day of 
March, 1860. Hence, his testimony can have no weight 
whatever, to overcome the legal presumption in favor of the 
fairness and sufficiency of the consideration of the notes, 
that arises upon the face of the papers themselves. From 
the answers of Morris, we learn that Morris agreed, on the 



MAOON, JANUARY TERM, 1861. 1 77 

llontgomeiy and another v«. Morris. 

first Taesday in Januaiy, 1860, to purchase of Mrs. Mont- 
gomery her land and negroes^ at the price of eight thousand 
dollars, to which she assented^ and, in pursuance thereof, 
executed to him a bill of sale of the negroes, and delivered 
to him her title deeds for the land. It was agreed, further, 
that on the return of Morris from a trip to the West, that he 
then intended, he should pay said sum of money in the 
manner agreed upon, when she should deliver to him pos- 
session of the property. On the 17th day of March, after 
this agreement, the defendants, Mrs. Montgomery and Mrs. 
Duncan, met Morris at his house in Marietta, and upon 
their own application, executed to him their notes, amounting 
to the sum of four hundred and fifty dollars, to induce him 
to give up the bill of sale that Mrs. Montgomery had pre- 
viously executed to him for the negroes, the title deeds for 
the land, and to cancel the whole agreement ; and this, we 
think, was a sufficient consideration. The plainti£P, Morris, 
by the bill of sale, had an interest in, if not the legal title 
to, the negroes. Whether he could have recovered the 
negroes and enforced the agreement, it is not now material 
to inquire. The bill of sale and agreement might have 
been procured by the most fraudulent practices upon an 
illiterate and weak old woman, but it was to the interest and 
benefit of Mrs. Montgomery to be relieved from the effect of 
that agreement, to get back her title deeds to her lands, and 
to have the bill of sale she had made, cancelled. To have 
this doad, to say the least of it, over her property removed, 
was her object, and to accomplish this, she gave these notes, 
and effected her purpose. This was the benefit to her in the 
trade, which has always been held sufficient to support a 
pTooiise made in consequence. There is not the slightest 
evidence that any fraud or misrepresentation was practiced 
to induce the giving of the notes. This is not pretended, 
but it is claimed, that the procuring this bill of sale, agree- 
ment and title, in the first place, was done by the fraudulent 
practices of a sharp trader upon a weak, ignorant, unsuspect- 
ing, and innocent old woman. Without intending to say 
that this is true, still, if it were, these notes would still be 
Vol. XXXII — 12. 



178 SUPREME CX)URT OF GEORGIA. 

Bedding vs. Price. 

good and valid against the maker, for it was legitimate, and 
to her interest, to buy or settle herself out of the scrape into 
which she had fallen, and no doubt made a good trade in 
doing so. 

3. Putting the case exclusively on this footing, the promise 
was binding on the maker, for that is directly within the rule 
laid down by this Court, in Ham vs. Hamilton, 29 Ga., 41 — 
that is, " that parties may settle frauds as well as anything 
else, if they act with knowledge of the facts ; and such a 
settlement is as effectual, when made by the parties, &s when 
made by the Courts ;" and this, we think, an express adjudi- 
cation of the main question in this case, and conclusive. 

Judgment affirmed. 



Redding vs. Price. 



The Act of 1867, authorizing bail process against the maker of a prom- 
issory note, at the instance of the security or endorser, is inapplicable 
to suits pending at the time the affidavit is made. 

Complaint, in Webster Superior Court. Tried before 
Judge Perkins, at the September Term, 1860. 

The fasts and questions exhibited by the record in this 
case, are as follows, to-wit : 

John V. Price brought an action, in Webster Superior 
Court, against John E. Plunket, as maker, and William R, 
Redding, as endorser, to recover the amount of a promissory 
note for $78 50, dated the 11th of January, 1858, due at 
one day, payable to S. B. Hawkins, or bearer, made by the 
said Plunket, and endorsed by the said Redding. 

The action was commenced on the 21st day of February, 
1859. 

On the 3d day of September, 1859, Redding made an affi^ 
davit "that John E. Plunket was indebted to John V. 
Price, by promissory note, dated 11th of January, 1868, 



MACON, JANUARY TERM, 1861. 179 

Redding r«. Price. 

<Iae one day after date, for $78 50 ; that defendant was en- 
dorser on said note, and that he apprehends that the payment 
of the debt, or some part of it, will devolve on himself, if the 
said Plunket is not held to bail/' 

This affidavit was handed to the attorney of Price, who 
immediately filed the same in office. 

Upon this affidavit, without any process attached thereto, 
or any endorsement being made thereon, Plunket was arrested, 
and imprisoned in the common jail of Webster county. 
Afterwards, he gave bond and security, notified his creditors, 
took the oath prescribed for insolvent debtors, and was dis- 
charged, according to law, at the September Term of Webster 
Superior Court. Plunket withdrew the notice of his inten- 
tion to avail himself of the benefit of the Acts passed for 
the relief of honest and insolvent debtors, which had been 
served on the plaintiff. Price, in order to obtain the services 
of Col. Hawkins, in the matter of his application to be dis- 
charged ; Hawkins being Price's attorney, and being unable 
to aid Plunket, unless the notice to Price should be with- 
drawn. 

At the September Term, 1859, a verdict and judgment 
were rendered in favor of Price, against Plunket, maker, and 
Redding, endorser, for the amount of the note sued on. 

From this judgment Redding, on his part, entered an 
appeal, and, at the March Term, 1860, filed a plea, " that he 
was released from liability on the note sued on, by reason of 
the failure of the plaintiff to issue bail process against Plun- 
ket, the endorser having made his affidavit, and presented 
the same to the attorney of the plaintiff, in terms of the 
statute." 

On the trial of the case on the appeal, counsel for Bed- 
ding tendered, in evidence, the original affidavit made by 
him as aforesaid, together with the entry thereon of the 
defendant's arrest by the sheriff, to which counsel for the 
plaintiff objected, on the ground, that Plunket had been ar- 
rested and imprisoned by virtue of said affidavit, and that it 
had performed all the office of a bail process regularly sued 
out; and on the further ground that suit was pending on 



180 SUPREME COURT OF GEORGIA. 



Bedding vs. Price. 



the note at the time the affidavit was made and banded to 
the plaintiff ^s attorney, and the Act of 1857 did not applj. 

The objection was sustained, and the affidavit and return 
were repelled by the presiding Judge, and counsel for Bed- 
ding excepted. 

Bedding then confessed a judgment, with leave to except 
to the ruling of the Court, and error is assigned on the 
decision of the Judge repelling the affidavit, and a reversal 
of the judgment is asked on that ground. 

Samuel C. Elam for plaintiff in error. 

Willis A. Hawkins, for defendant in error. 

By the Court — Jenkins, J., delivering the opinion. 

The Act of 1857, under which the bail process offered in 
evidence was sued out, is, by its terms, inapplicable to suits 
pending. It provides, that when a security, or endorser, 
shall file an affidavit, like that now tendered, it shall be the 
duty of the holder of the note immediately " to commence 
suit," and file the affidavit, etc. 

Either it does not apply to the holder of a note who has 
already commenced suit on the note, or it requires him to 
institute a second suit. The latter proposition would seem to 
be so unreasonable as scarcely to require consideration. It 
is argued, that bail process may be as important to the secu- 
rity in a case pending, as when none had been instituted. It 
may truly be so, but that is an argument for the L^islature, 
not for this Court. Besides, if this view be erroneous, if the 
Act of 1857 authorizes a security, or endorser, to have bail 
process against the maker of a note, pending suit against 
him, the record before us shows that the defendant in error 
did all that, by a fair construction of the Act, could be re- 
quired of him. He immediately filed the affidavit in the 
office of the Clerk of the Court in which this suit was pend- 
ing. If any officer of the Court failed to discharge his- duty 
after that, and by reason of such failure, plaintiff in error 
lost the benefit of the remedy, his recourse is upon such offi- 



MACON, JANUARY TERM, 1861. 181 

Jones et al,, vs. Maiiroe. 

cer. This evidence could not, in any view of the cafie^ have 
afieoted the rights of the defendant in error, and was, there- 
fore, properly excladed. 
Judgment affirmed. 



Jones et al. vs. Munhoe. 



I A second amendment of a bill in eqoity, afler adjudications bj this 
Coartthat neither the original bill nor the first amendment, contained 
aUejgBtioDs entitling the complainant to relief, will be allowed if meri- 
toriooS; and if presented to the Court below before final order dis- 
missing the bill. 

2. Eqnitj, in a proper case made, will relieve against an agreement of 
compromise, made under a mistake of law by the party seeking relief. 

In Equity, in Lee Superior Court. Decided by Judge 
Allen, at the September Term, 1860. 

George W. C. Munroe filed his bill in equity in Lee Su- 

p»ior Court, against Willis A. Jones, James M. Morris, 

aad Jamee Bond, alleging, in substance, the following facts : 

On the second of October, 1838, Abraham Dyson, then 

sheriff of Lee county, executed a deed of conveyance, as 

^ucb, to William Howard and William S. Whitehead, for lot 

of land No. 14, in the second district of said county, pur- 

soaot to a sale of the same, by virtue of a fi, fa, from a 

Joyce's Court of Habersham county, in favor of Tyre 

Swifi, against Kansom Cain, as the property of the latter. 

Thtt deed was registered on the 2d of November, 1838. On 

tfce 25th of June, 1840, Elijah Cutts, then sheriff of said 

coantj, ezecmted a deed, as such, to William J. Parker, for 

the latdivided half of said land, pursuant to a sale of the 

ttmc^M tbe property of William S. Whitehead, under a^. 

fcLf fiom a Justice's Court of Stewart county, in favor of 

WilfiMI J* Parker against said William S. Whitehead. 

Tim dMHi WB0 recorded on the 30th of March, 1842. On the 

25ih 9i Ma^wbeatj 1850, David A. Yason conveyed, by 



182 SUPREME COURT OF GEORGIA. 

Joues et (il.y v$. Monroe. 

deed, to Munroe, one undivided half of the land, and, on 
the 25th of the same month, the said William J. Parker 
conveyed, by deed, to Munroe, one undivided half of the 
land. Both of these deeds were recorded on the 7th of 
January, 1851. Munroe entered into possession of the land 
under these deeds, cleared about fifty acres of the lot and 
placed them under cultivation, and also made other valuable 
improvements thereon, making the land worth twenty-five 
hundred dollars. Whilst Munroje was thus in the bonajide 
possession of the land, believing that it was his, and holding 
the same adversely to all the world, James Bond, who was 
then speculating in lands, came to the house of complainant, 
and sought information as to various lots of land then 
vacant in the neighborhood of complainant, which informa- 
tion complainant gave. Bond seemed grateful, and assured 
complainant that, in return, he would aid complainant in the 
purchase of any lands that he might want. Complainant 
then told Bond that he had bought the said lot, No. 14, and 
had cleared and improved it as aforesaid, and believed he 
had a good title, but that some of the back deeds were miss- 
ing, and that, owing to the imperfect index to the records, 
he was unable to trace the title back to Ransom Cain, 
the drawer. Some time thereafter, one James M. Morris 
came to complainant's house, pretending to be the agent oi 
Bond, and that a similar interview occurred between him 
and complainant, to the one between complainant and Bond. 
Morris and Bond searched out the whereabouts of Bansom 
Cain, and, in fraudulent disregard of their promise to com- 
plainant, they bought the land from Cain, taking a deed to 
Morris. This purchase was for a nominal sum, and Morris 
made a deed to Bond, in which a larger sum is mentioned, 
when the land was, in fact, purchased by Morris for Bond^ 
and with his money, and for his sole benefit. Bond em- 
ployed counsel to bring an action of ejectment, on demises 
from Cain, and Morris against complainant, to recover said 
lot of land. No demise from Bond was laid in the ^prrit, 
because he desired to conceal his ownership of the land, and 
dodge and evade his obligation to complainant, as before 



MACON, JANUARY TERM, 1861. 183 

Jones ei al,<, vs, Manroe. 

Stated. The action of ejectment is now pending on the 
appeal in Lee Superior Court. Complainant's counsel ad- 
vised him, that although he had a regular claim of title from 
Ransom Cain, the drawer, all of which, as was ascertained, 
bad been regularly and properly recorded, yet, as the land 
was sold by the sheriff, as the property of Cain, before the 
grant had issued, the title was doubtful ; but that, as Morris 
bought from Cain whilst complainant held possession of the 
land adversely, it would be well for complainant to buy the 
land from Cain, which advice complainant followed, and, on 
the 25th of January, 1864, obtained a deed from Cain to the 
land, paying therefor the sum of {250 00. On the trial of 
the ejectment, the main ground of defence relied on was, that 
Cain's deed to Morris was void, under the provisions of the 
statute of the 32d of Henry VIII, which was fully sustained 
by the presiding Judge in his charge to the jury, and a 
verdict was rendered in favor of the complainant. The 
case was carried to the Supreme Court, and 'the judgment of 
the Court below reversed by the judgment of a majority of 
the Judges of the Supreme Court, who decided that the said 
statute of the 32d of Henry VIII was not of force in Geor- 
gia. His Honor Joseph Henry Lumpkin dissented from the 
judgment of his colleagues, and held that said statute was of 
force, and if it was not, that the principles of the como^on 
law rendered a deed void, executed whilst the land was in 
the adverse possession of another. Xhe General Assembly, 
at its session of 1858, passed an Act declaring that the de- 
cisions of the Supreme Court, made, or to be made, in which 
all three of the Judges concurred, or might concur, should 
not be reversed, overruled, or changed, except by the Gen- 
eral Assembly, and that such ^decisions should be carried 
out by the Courts, until thus reversed, overruled or changed. 
Afterwards, complainant sold his settlement of land, includ- 
ing this lot, to Willis A. Jones, for $7,593 50, being $12 50 
per acre, and that Jones paid all the purchase money, except 
for the lot in controversy, for which he gave his note, pay- 
able. one day after dt^te, with a condition inserted therein, 
that if the action of ejectment should be decided against 



184 SUPREME COURT OF GEORGIA. 

Jones et cU.j vs. Manroe. 

complainant, the note was to be void, and, if otherwise, the 
note to be paid, with interest from its date. The land is 
more valuable as a part of the plantation sold to Jones, as 
aforesaid, than by itself, and will be of oomparativelj little 
value to complainant by itself, unless Jones would cancel the 
trade entirely, and re-convey to complainant the whole set- 
tlement. Jones refused to pay the note, and contends that, 
as th^ Supreme Court decision was adverse to complainant, 
the note is void. On the 14th of December, 1868, Messrs. 
Lanier and Anderson, attorneys for Bond, with a full knowl- 
edge of the fact that the Legislature had passed the Act 
aforesaid, and carefully concealing the same from the com- 
plainant, who was ignorant of the fact, represented Bond's 
title as the only true l^al title to the land, and pronounced 
complainant's title as worthless in law, and told complainant 
that the case could be then, and then only, compromised, 
and would give complainant no time to inform himself as to 
the passage of such an Act. Confiding in the statements 
and representations of the said Lanier & Anderson, and de- 
siring to save all he could of his hard earnings, expended for 
and upon said land, the complainant was induced by them to 
make a most unjust and illiberal compromise of said action 
of ejectment. The agreement to compromise was reduced to 
writing by said attorneys of Bond, in which it was stipulated 
and agreed, that complainant should give Bond his promis- 
sory note for $2,000 00, due one day after date, with interest 
from the first of January, 1858, and also deliver up to said 
attorneys, as collateral security, the note of Jones aforesaid, 
which was for $2,500 00, and that Bond should execute to 
complainant a quit claim deed for the land. It was further 
stipulated, in said agreement, that the note given by com- 
plainant should be paid out of the proceeds of the note on 
Jones, and the balance paid over to complainant, and that if 
said attorneys should have to sue the note on Jones, they 
were to retain five per cent, on the surplus, after paying of 
the note given by complainant to Bond. Under the agree- 
ment, complainant was to take a verdict in the action o^ 
ejectment, and Bond was to deliver up to him the deeds from 



MACON, JANUARY TERM, 1861. 185 

Jones el tU., vs. Monroe. 

Ckin to Morris, and from Morris to Bond. So soon as com- 
plainant found out; that he had been entrapped and duped 
into said compromise, and had ascertained that the Legisla- 
ture of Greorgia had passed the Act aforesaid, he forthwith 
repudiated the compromise, and demanded that the agreement 
should be cancelled and delivered op, which was refused by 
the said Bond and his attorneys. Complainant has reason 
to fiear that Bond will collude with Jones, and induce him to 
pay said note, or that he will transfer the notes on Jones and 
complainant, and thus in vol ve complainant in a complex law- 
suit, or law-suits, and increase the difficulties in the way of 
his obtainment of his just rights in the {Mremises. Com- 
plainant has learned that Jones is desirous of getting clear of 
his obligations to take and pay for said lot of land, and that 
Bond is anxious to own the same, and he fears that Bond 
may agree with Jones to cancel said note, and for Jones to 
convey the land to Bond, and thus jeopard complainant's 
right. Complainant tenders back the agreement to compro- 
mise, and declines taking Bond's quit claim deed, and also 
declines any other benefit under said agreement, and insists 
that the agreement be canceled, and the parties remitted to 
all their rights, as if it had never been made. 

The bill prays a discovery; and that the ejectment be 
enjoined, and that Bond be enjoined from transferring the 
notes on Jones and complainant ; and that Jones be enjoined 
from paying his note to Bond, or any one else, until the bill 
is heard ; and for general relief. 

The bill was filed 31st December, 1858, and the injunction 
issued as prayed for in the bill. 

Bond and Morris both answered the bill, denying any 
agreement to aid complainant in perfecting his title to the 
land, and insists that their title is good. 

Messrs. Lanier & Anderson, and Ebenezer C. Grier, each 
file affidavits, detailing the circumstances attending the agree- 
ment to compromise, and negativing the averments in the bill 
of unfairness in bringing about the compromise, and denying 
any knowledge that the Legislature had passed the Act 
referred to in the bill. At the March Term, 1859, counsel 



186 SUPREME COURT OF GEORGIA. 

Jones et al., vs. Munroe. 

for defendants made a motion to dissolve the injunction, and 
to dismiss the bill, for want of equity. The presiding Judge 
overruled the motion, and ordered the cause to proceed. 

This decision was excepted to by the defendants, and carried 
to the Supreme Court, and, at the July Term, 1859, of said 
Supreme Court, the decision of the Court below was reversed, 
on the ground that this case, having arisen before the passage 
of the Act of 1858, referred to in the bill, was a case to 
which said Act did not apply. 

Before this judgment of the Supreme Court was made the 
judgment of the Cpurt below, counsel for complainant, by 
leave of the Court, amended his original bill, by alleging : 

That he was induced to make the agreement to compro- 
mise, mentioned in the original bill, by the assurances given 
him by Messrs. Lanier & Anderson, and Ebenezer C. Grier, 
a skillful lawyer, that the deed from Cain to Morris was not 
void because of complainant's adverse possession of the land 
at the time it was made, but that said deed was valid, and 
constituted a title paramount to that of complainant ; that, 
since the filing of this bill, he has heard, and believes it true, 
that the Supreme Court of Georgia, at its recent sitting in 
Atlunta, in a case of Edward Grisham against William C. 
Webb, has decided that, aoeording to the principles of the 
oommon law, adopted by statute, and of force in Geoi^a, a 
deed made to land, whilst the same is held adversely by a 
third person, is void, and confers no title ; that, having been 
deceived, misled, and mistaken as to his legal rights, and the 
law governing this case, he insists that said agreement should 
be set aside, and the parties restored to their fi»rmer position 
and rights. 

At the September Term, 1859, this amendment wasallow* 
ed, and an order passed retaining the injunction. 

This decision was likewise excepted to, carried to the 
Supreme Court, and reversed. 

At the September Term, 1860, when it was proposed, by 
defendants' counsel, to enter the judgment of the Supretne 
Court as the judgment of said Superior Court, and to dis- 



V 






MACON, JANUARY TERM, 1861. 187 

Jones et cU., vs. Manroe. 

miss said bill, the complainant, before the motion was made 
and decided, again amended his bill, by alleging : 

That he has heard, and believes it true, that the judgment 
of this Court was reversed the last time by the Supreme 
Court, on the ground that it was not alleged, either in the 
original bill of complainant, or in the amendment thereto, 
that complainant believed, at the time he made and entered 
into the agreement with Messrs. Lanier & Anderson to com- 
promise said action of ejectment, that the decision of the 
Supreme Court, in the case of Cain and Morris, was the law 
of Georgia ; that it was his intention so to allege, and that 
tie did believe that such was the law ; that Messrs. Lanier & 
Anderson not only gave him that assurance, but, out of abun- 
dant caution, he consulted Mr. Grier, of the law firm of Poe 
& Grier, of the city of Macon, a lawyer of learning and 
ability, and was assured by him, after laying all the facts 
before him, that the decision in the case of Cain and Morris 
was the law, and the deed from Cain to Morris for the land 
in dispute was not void, although the complainant was in 
the adverse occupation of the land at the time it was exe- 
cuted, but that said deed was valid and paramount to com- 
plainant's title ; that complainant believed and confided in 
these assurances as true, and as indicating the law governing 
his case, and, under this belief and assurance, he made said 
agreement; that the ^reement was thus made under a mis- 
take, and an honest misapprehension of his legal rights, and 
by which he was induced to compromise the case, because he 
honestly believed that, according to the laws of Georgia, his 
title was inferior to that of the defendants in this bill, on 
aocoaot of the adjudication of the Supreme Court in said 
case of Cain and Morris. 

This amendment was allowed by the presiding Judge, and 
an order passed retaining the injunction until a further hear- 
ing. This decision is the error now complained of. 

Lanier & Anderson and McCay & Hawkins for plain- 
tiffs in error. 

Yason & Davis for defendant in error. 



19 SUPREME COURT OF GEORGIA 

Jones et cU,, vs. Manroe. 

I . — 

By the Court. — Jenkins, J., delivering the opinion. 

The law regulating the practice in Courts of original juris- 
diction, in Georgia, allows amendments of the pleadings at 
any stage of the proceeding. Notwithstanding, therefore, 
the defendant in error (^mplainant below) failed both in his 
original bill, and in his first attempt at amendment, to make 
a case entitling him to relief in equity, if his last amend- 
ment of his bill, (which was presented before the final order 
of the Court below dismissing his bill), contains averments 
entitling him to relief, he must be heard upon the merits. 

Having carefully examined the last amendment, we thinly 
it does clearly allege that the agreement, the cancellation of 
which is the relief sought, was entered into under a mistake 
of law, on his part, the facts being well understood. 

The rule of law concerning which the mistake is alleged 
to have been made, and upon which the title of the defend- 
ant in error rested, is this, '^ a conveyance of land by one 
against whom the land conveyed is held adversely, by daim of 
title, is void" Taking this to be the rule of law, the title of 
defendant in error was good. Under the impression that 
the rule was otherwise, defendant in error compromised his 
title, and it is this compromise which he, by his bill, seeks 
to set aside. Is that the rule of law in Georgia ? In Harris 
vs. Cannon et al,, 6 Ga. R., 382, and in Harrison vs. Adcock 
etal,f8 Oa. R, 68, this Court unanimously affirmed the 
rule. 

In Cain & Morris vs. Monroe, (involving the very title 
which defendant compromised subsequently,) a majority o£ 
the Court disaffirmed the rule. Judge Lumpkin, in a dissent— 
ing opinion, adhering to the previous rulings. In Gresham 
vs. Webb et a?., 29 Oa. B., 320, a majority of the Court 
overruled Cain vs. Morris et oZ., and reaffirmed the rale 
established in the earlier cases — Judge Benning dissenting* 

By (he Act of 1858, the Legislature provided, impera- 
tively, that the decisions of this Court, made, or to be made, 
in which all three of the Judges concurred, or may conctar, 
shall not be reversed, overruled, or changed, except by tike 



MAC50N JANUARY TERM 1861. 189 

Jones et al. , vs, Munroe. 

General Assembly, and that such decisions shall be carried 
into effect by the Courts, until thus reversed, overruled, or 
choDged. 

In the first place, then, the cases of Cain & Morris vs. 
Maoroe, and of Gresham vs. Webb ei al.^ being adverse the 
one to the other, and neither made by a concurrence of all 
the Judges may, and should, be put out of the question. In 
the next place, the cases of Harris vs. Cannon et al.y and 
Harrison vs. Adcock et al.y both of which emanated from a 
full bench, all of the Judges concurring, must, under the 
Act of 1858, be now regarded by this Court as declarations 
of the law. In this view, the last amendment of defendant 
in error to his bill, sufficiently avers, that the agreement of 
compromise with Bond, was made by him under a mistake 
of law. In suchcases, relief will be granted by a court of 
quifcjr. 1 Story's Eq. Jur., sec. 121 et seq, to 132. This 
was no family compromise. It was no compromise under 
the impression that the law was doubtful or uncertain, made 
with a view of bringing peace. It was under an entire and 
thorough mistake of law. 

We go no further, however, than to decide, that the aver- 
ment in the bill, as amended, regarding this mistake, is suf- 
ficient to entitle the complainant to a hearing on the merits, 
and we consider it only ad affecting the validity of the agree- 
ment of compromise between Munroe and Bond. How far 
the rights of the parties in the action at law of Cain & Mor- 
ris vs. Munroe (still pending) may have been affected by the 
jadgment of this Court, in that particular case, we leave as 
an open question, until presented for our adjudication. We 
affirm the judgment of the Court below, allowing the amend- 
ment and retaining the case. 
Jadgment affirmed. 



190 SUPREME C!OURT OF GEORGIA. 

Hartell vs. Searcy. 

Kartell, Trustee, V8. Searcy. 

A party is not entitled to the judgment of two separate and independent 
tribanals, upon the same subject matter, and a judgment rendered in 
one, will be a bar to a second hearing in the other ; and, upon proof 
of the first judgment, the case pending before the other tribunal will 
be dismissed. 

Trover, in Talbot Superior Court. Decided by Judge 
WoRRiLL, at the September Term, 1859. 

This was an action of Trover, brought by Firman Hartell, 
as the trustee of Mrs. Louisa E. Cuthbert, against William 
Searcy, to recover damages for the alleged conversion of 
certain negro slaves. 

The action was dismissed in the Court below, and the de- 
cision was excepted to, and brought before this Court by 
writ of error, returnable to the January Term, 1860. That 
term being pretermitted, for providential cause, the case 
went over to the next succeeding term, at which time, a 
motion was made by counsel for defendant in error, to dis- 
miss the writ of error, on the ground that the plaintiff, not- 
withstanding the pendency of the writ of error in this case, 
commenced an action for the identical property, against the 
defendant, in the Sixth Circuit Court of the United States, 
for the Southern District of Georgia, in which judgment 
was duly rendered in favor of the defendant, at the April 
Term, 1860. The facts on which the motion rested, were 
verified by affidavits ; but this Court, requiring the better 
and higher evidence furnished by an exemplification of the 
Circuit Court judgment, the case was continued, to enable the 
counsel for defendant to obtain that exemplification. 

Counsel for the defendant at this term, appear in Court, 
with the exemplification of the said judgment in the United 
States Circuit Court, and renew the motion to dismiss the 
writ of error. 

Johnson & Sloan for the motion. 

Levi B. Smith contra. 



MACON, JANUARY TERM, 1861. 191 

Hartell v$. Searcy. 



By the Court. — Lumpkin, J., deliveriDg the opinion. 

A party is not entitled to prosecute a suit for the same 
cause of action in different Courts, or in the same tribunal, 
at the same time. Where the State and Federal Courts have 
concurrent jurisdiction, the rule is, for that Court to have 
precedence which first obtains jurisdiction. Here the action 
was brought first in Talbot county, but was dismissed ; a bill 
uf exceptions was certified and filed, but before the case 
could be heard, the plaintiff renewed his action in the Sixth 
Circuit Court of the United States, for the Southern District 
of Georgia. The defendant, willing to litigate in that forum, 
appeared and defended the case there, and a judgment has 
again been rendered in his favor. Upon proof of these facts, 
he moves to dismiss the writ of error pending in this Court; 
and we think he is entitled to do so. Unless the case is 
reinstated by the judgment of this Court, the defendant 
could not plead the judgment in the Circuit Court to the 
case in Talbot, there being no case pending in that Court. 
And we do not think he is entitled to the judgment of this 
Court upon the case which he brought up, but consider it 
abandoned by the subsequent proceedings of the Circuit 
Court. Every party is entitled to his day in Court, but no 
party is entitled to a day in two Courts upon the same 
subject matter. The judgment of either, having competent 
jurisdiction, should be final and conclusive in the premises. 

Judgment : that the writ of error be dismissed. 



190 SUPREME COURT OF GEORGIA. 

Hartell vs, Searcy. 

Hartell, Trustee, vs. Searcy. 

A party is not entitled to the judgment of two separate and independe 
tribunals, upon the same subject matter, and a judgment rendered 
one, will be a bar to a second hearing in the other ; and, upon prr 
of the first judgment, the case pending before the other tribanal ? 
be dismissed. 

Trover, in Talbot Superior Court. Decided by Jo* 
WoRRiLL, at the September Term, 1859. 

This was an action of Trover, brought by Firman Hai 
as the trustee of Mrs. Louisa £. Cuthbert, against Wil 
Searcy, to recover damages for the alleged oonversic 
certain negro slaves. 

The action was dismissed in the Court below, and tl 
cision was excepted to, and brought before this Cott 
writ of error, returnable to the January Term, 1860. 
term being pretermitted, for providential cause, th 
went over to the next succeeding term, at which 
motion was made by counsel for defendant in error, 
miss the writ of error, on the ground that the plaint 
withstanding the pendency of the writ of error in tl 
commenced an action for the identical property, agr 
defendant, in the Sixth Circuit Court of the Unites 
for the Southern District of Georgia, in which j 
was duly rendered in favor of the defendant, at t 
Term, 1860. The facts on which the motion res 
verified by affidavits ; but this Court, requiring t 
and higher evidence furnished by an exemplificati 
Circuit Court judgment, the case was continued, to • 
counsel for defendant to obtain that exemplificatioi 

Counsel for the defendant at this term, appear 
with the exemplification of the said judgment in i 
States Circuit Court, and renew the motion to • 
writ of error. 

Johnson & Sloan for the motion. 

Levi B. Smith contra. 



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194 SUPREME COURT OF GEORGIA. 

Durham vs. Mayo. 

By the Court. — Lyon, J., delivering the opinion. 

David A. Mayo, as a mason, did some work on the " Isa- 
bella Hotel," or " Crammey House," as then called, in the 
city of Albany, and recorded his lien on the house and 
premises for the same, under the Act of 22d December, 1834 
After his lien was recorded, this property jfyas levied on and 
sold under an execution from the sixth Circuit Court of the 
Uaited States, for the Southern District of Georgia, and 
was purchased at that sale by the plaintiff in error, Lindsey 
H. Durham. Mayo having brought suit on his claim, and 
obtained judgment under the Act, caused his execution, 
issued from that judgment, to be levied on the premises cov- 
ered by his lien, and Durham interposed his claim. 

These facts being developed on the trial, the claimant, 
Durham, asked the Court to charge the jury, "that if claim- 
ant bought the property in dispute under a Ji. fa* against 
Crummey, afler the lien was recorded, then they should find 
the property not subject." The Court refused to give the 
charge, but charged, "that if, at the time of the purchase of 
said property by the claimant, notice was given by the Mar- 
shal that the property was sold subject to the plaintiff's lien, 
then the jury should find the property subject." 

The refusal to charge as directed, and the charge as given, 
are the grounds of error complained of in this case. 

1. By the 6th section of the Act before referred to, (Cobb, 
556), it is enacted, that, " Whenever any house and lot, or 
houses and lands, subject to incumbrances herein created, 
shall be seized and sold by authority of any process or decree 
of any court in this State, the same shall pass to the pur- 
chaser free from such incumbrance, which incumbrance shall 
attach to the proceeds in the hands of the officer making it, 
on a notice, as in cases of claims to money raised under exe- 
cution, which notice, with the money, shall be returned to the 
Court by the officer." Under this Act, the sale of the prem- 
ises, and purchase by Durham, under the execution against 
Crummey, divested the premises of the lien, and passed the 
whole title of Crummey, the defendant in the execution, to 



MACON, JANUARY TERM, 1861. 196 

Howard et aL, vs, Snelling. 

the purchaser, Durham; and the lien of Mayo, given by the 
statute, was transferred from the house and lot to the pro- 
ceeds of that sale. The house and lot was no longer subject 
to be seized and sold under the lien, and the Court ought to 
have given the charge as requested. 

2. That the property was sold by the Marshal subject to 
this lien, and purchased by Durham, with notice of its exist- 
ence, does not, in the slightest degree, alter the rule. The 
statute contemplates that the holder of the lien shall take 
notice of the sale, for it provides that the incumbrance shall 
attach to the proceeds, instead of the premises, and that the 
officer, on notice, shall hold up the money, and return the 
same to the Court. 

There is no hardship in this provision of the statute, but 
it is really beneficial for the holders of these liens. It saves 
die necessity of reducing their claims to judgment. 

That it has proved disastrous to the defendant, Mayo, in 
this case, is not the fault of the Act, but that of his neglect 
to give heed to it. 

Judgment reversed. 



Howard et al, vs, Snelling. 

1. The sole sabscribing witness to a deed, or other instrument of writing, 
being dead, proof that the subacription of his name is his genuine 
bandw^riting and signature, is sufficient to admit the paper in evidence. 

2. A recital in a bill of sale, or other muniment of title, of a pecuniary 
consideration, paid by the vendee to the vendor, for the property sold, 
is not evidence against a party claiming under the vendor by a prior 
conreyance of the same property. 

3. In a case arising between a volunteer and a subsequent purchaser for 
value, without notice, it is not error in the Court to charge the jury 
that the subsequent sale of the property was a circumstance to be con- 
sidered by them in determining whether or not the voluntary deed was 
made with intent to defraud. 

i. Nor was it error in the Court, to charge, that that circumstance is not 
conclusive, but that it may be rebutted by evidence showing that the 
voluntary conveyance was bona fide. 



196 SUPREME COURT OF GEORGIA. 

Howard et at., vs, Snelling. 

The cases of Fleraming vs. Townsend, Fowler vs. Waldrip, Harper ts. 
Scott, Clayton vs. Brown, Brown et al. vs. Barke, and Black etcd. vs. 
Thornton, reviewed, shown to be consistent and re-affirmed. 

5. 6. 7. A great lapse of time, (say thirty years), between the volnntary 
conveyance and the subsequent conveyance for value, is a circumstance 
to be gravely considered as evidence rebutting the presumption of 
fraud, growing out of the case ; and connected with other evidence, 
showing strong influences operating on the donor^s sense of justice 
and natural afifection, to induce the making of the voluntary convey- 
ance, should be considered a re\)uttal of the presumption. 

Trover, in Stewart Superior Court. Tried before Judge 
Perkins, at the October Term, 1860. 

This was an action brought by Harman H. Howard and 
his wife, Mary Howard, Elizabeth Speer, Harman H. How- 
ard, as administrator of Wm. B. Tompkins, deceased, and 
John Smith, as administrator of John Tompkins and Stephen 
Tompkins, deceased, against John D. Snelling and James 
W. Snelling, to recover damages for the alleged conversion, 
by the defendants, of ten negro slaves, to which the plaintiffs 
claim title, to-wit : Harriet, and her children, George, Jacob, 
Daniel, Morgan, Rhoda, Clarissa, Sophia, Maria and Jack- 
son, alleged to be worth, in the aggregate, the sum of ten 
thousand dollars, and of the aggregate yearly value for hire, 
of eight hundred and seventy-five dollars. 

Pending the action, John Smith, one of the plaintiffs, die<l, 
and Obediah R. Lewis, administrator, de bmiis non, of John 
Tompkins and Stej)hen Tompkins, deceased, was made 
party plaintiff in his stead. The name of James W. Snell- 
ing was stricken from the case as a defendant. 

In behalf of the plaintiffs, the following facts were proved 
on the trial, to-wut : 

Samuel Tompkins married a woman in the county of 
Jefferson, whose name is not given in the record, and found, 
on said marriage, that she was pregnant, and he immediately 
carried her back to Jefferson county, from whence he hax:! 
brought her; afterwards, he married another woman, by th« 
name of Polly Watts. On the ninth day of August, in the 
year 1809, he executed a deed, of which the following is a 
copy, to-wit : 



MACON, JANUARY TERM, 1861. 197 

Howard et aL., vs. Snelling. 

''This indenture, made this ninth day of August, in the 
year of our Lord one thousand eight hundred and nine, be- 
tween Sjimuel Tompkins, of the county of Washington, and 
State of Georgia, of the one part, and Robert Rutherford, of 
the town of Milledgeville, and Baldwin county, and Frank- 
lin Rutherford, of Washington county, both of said State of 
Georgia, of the other part, witnesseth : That for and in con- 
sideration of the trust and confidence reposed in the said 
Rabert Rutherford and Franklin Rutherford, as well as the 
love, good will and affection which he hath for and towards 
the children of Polly Watts, otherwise Polly Tompkins, 
hath given and granted, and doth, by these presents, freely 
give and grant unto the said Robert Rutherford and Frank- 
lin Rutherford, the following negroes, to-wit : Jack, Febru- 
ary, Rhody, Stephen and Sarah ; to have and to hold the 
aforesaid five negroes unto the said Robert Rutherford and 
Franklin Rutherford, upon trust, nevertheless that the said 
Robert Rutherford and Franklin Rutherford, or either of 
them, shall, and do well and truly, and without partiality, 
divide, and equally apportion the before mentioned negroes, 
together with their increase, at the death of the said Samuel 
Tompkins, or within nine months thereafter, among all the 
children that may be born of the said Polly Watts, otherwise 
Polly Tompkins, at the end of said nine months, whether 
legitimate or illegitimate; and the said Samuel Tompkins, 
for the full and more clear disposal of the said five negroes, 
as well as their increase, doth covenant to and with the said 
Robert Rutherford and Franklin Rutherford, to and for the 
use of the said children of the said Polly Watts, otherwise 
Polly Tompkins, of which children are now in life, John, 
Betey, Samuel and Polly, sons and daughters of the said 
Polly Watts, otherwise Polly Tompkins, shall have, hold, 
occupy and enjoy : Provided, nevertheless, the said Samuel 
Tompkins, also, the said Polly Watts, otherwise Polly 
Tompkins, shall continue to use, employ and receive, all 
and singular, the services of the said five negroes during the 
full end and term of the natural life of the said Samuel 
Tompkins, also, during the life of the said Polly Watts, 



198 SUPREME COURT OF GEORGIA. 

Howard et al., vs, Snelling. 

otherwise Polly Tompkins, without any manner of trouble 
from the said Robert Rutherford and Franklin Rutherford, 
or either of them ; and the said Samuel, for the more free 
and clear disposal of the said live negroes unto the said chil- 
dren of the said Polly, and to their heirs and assigns, doth 
make and execute this reasonable instrument, or conveyance 
in writing, with the special reservation to the said Samuel 
and Polly, as herein expressed. In witness whereof, the said 
Samuel Tompkins hath hereunto set his hand and affixed his 
seal, the day and year within written. 

" Signed, sealed and delivered in presence of 

his 

« SAMUEL H TOMPKINS, [L. S.] 

mark. 

" Wms. Rutherford. 
"Jesse Armstrong, J. P." 

The following endorsement was written on the back of said 
deed, to-wit : 

" I do hereby acknowledge to have delivered the negroes 
herein mentioned to Robert Rutherford and Franklin Ruth- 
erford, with the reservation herein specified, this 9th day of 
August, 1809. 

his 

" SAMUEL M TOMPKINS, 

mark. 

" Wms. Rutherford. 

" Jesse Armstrong, J. P." 

The deed was duly executed and delivered, after which, it 
was recorded in the office of the Clerk of the Superior Court 
of Washington county, on the 12th of August, 1809. Sam- 
uel Tompkins owned the negroes mentioned in the deed, and 
had them in possession at the time the same was executed. 
The negro woman, Harriet, sued for in this case, is a child 
of the negro woman, Rhody, mentioned in the deed, and the 
other negroes sued for, are the children of the said Harriet. 
Samuel Tompkins and Polly Watts, alias Polly Tompkins, 
had eight children, to-wit: John W., Elizabeth, Samuel, 
Polly, William, Stephen W., Dolly, and Nancy. Johu W. 



MA(X)N, JANUARY TERM, 1861. 199 



Howard et al., vs, Snelling. 



married Polly Smith, Elizabeth married Thomas Williams, 
Polly married Harman Howard, William married Ellen 
Couch, Stephen W. married Serena Williams. Thomas 
Williams afterwards died, and his widow, Elizabeth, married 
a man by the name of Spear. Nancy married Joseph Miller. 
Samuel died in 1822 or 1823; Dolly died in 1837; Stephen 
W. died in 1837 ; William died in 1842 or 1843; John W. 
died in 1855 or 1856. Old man Samuel Tompkins, the 
maker of the deed, died the 23d of February, 1856, and 
Polly Watte, alias Polly Tompkins, died in 1837. The 
negroes sued for were converted by the defendant, Snelling, 
to his own use, and were worth, according to his estimate, 
the aggregate sum of $6,275 00, and were worth, for hire, 
8242 00 annually; and, according to the estimate of another 
witness, the negroes were worth $8,000 00, and were worth, 
for hire, $450 00 per annnm. The negroes came into pos- 
session of defendant in July, 1856, upon the death of his 
father, R. J. Snelling, of whose estate defendant was the 
legal representative. Obediah R. Lewis was regularly ap- 
pointed administrator de bonis non on the estates of Stephen 
W. Tompkins, and Jno. W. Tompkins, deceased, and Har- 
man H. Howard was also duly appointed administrator of 
William Tompkins, deceased. This action was commenced 
on the 25th of September, 1 857. 

In behalf of the defendant, the following facts were ad- 
duced, and put in evidence, to- wit: 

The admission of plaintiflfs' counsel, that Samuel Tomp- 
kins and John Thornton were both dead, and that John 
West, if present, would prove that the signature of said 
Thornton to the bill of sale, hereinafter set forth, was his 
genuine signature. Upon this admission, counsel for defend- 
ant tendered as evidence, the original bill of sale, of which 
the following is a copy, to- wit: 

" Lumpkin, August 9, 1839. 

"I have received of R. J. Snelling seven hundred and 
fifty dollars, in full payment for a certain negro woman, 
named Harriet, about fifteen years old, which negro I do 




200 SUPREME COURT OF GEORGIA. 

Howard et al., vs. SQelling. 

warrant to be sound and healthy in body and mind, and a 
slave for life, and Ijio further warrant and defend the title 
for the same. / ' 

his 

"SAMUEL M TOMPKINS. 

mark. 

" John Thornton." 

Counsel for the plaintiff objected to said bill of sale as 
evidence, on the ground that it was not sufficiently proven ; 
and also objected to said bill of sale being admitted in evi- 
dence to show that Snelling was a purchaser of the negro for 
value, as recited therein. 

The presiding Judge overruled the objection, and admitted 
the evidence, and the plain ti^s excepted. 

The presiding Judge charged the jury, amongst other 
things, as set out in the motion for a new trial, in a subse- 
quent part of this statement. 

The jury returned a verdict for the defendant. 

Counsel for plaintiffs moved for a new trial, on the follow- 
ing grounds : 

1. Because the Court erred in admitting in evidence the 
bill of sale from Samuel Tompkins to R. J. Snelling, over 
the objections made thereto by counsel for plaintiffs to said 
bill of sale being admitted in evidence, to show that Snelling 
was a purchaser of the ^gro for value, as recited therein. 

2. Because the Court erred in charging the jury : "That 
the recital in the bill of sale, as to the receipt of the pur- 
chase money for the negro girl, Harriet, was prima facie 
evidence against the plaintiffs of the fact of such a payment 
of the purchase money by R. J. Snelling;" and also erred 
in refusing to charge the following, as requested by the 
plaintiffs' counsel, to wit: "That said recital in the bill of 
sale was not evidence against the plaintiffs of the fact that 
Snelling paid the money." 

3. Because the Court erred in charging the jury: "That 
the subsequent sale of the negro by Tompkins to Snelling 
was evidence to be considered by them, of the intent of 
Tompkins, at the time of the execution of the voluntary 



MACON, JANUARY TERM, 1861. 201 

Howard et aL, vs. Snelling. 

deed, to perpetrate a fraud on subsequent iDurchasers or credi- 
tors; that it is a circumstance to be considered by them in 
determining whether the voluntary deed was made with 
intent to defraud." 

4. Because the jury found contrary to the following charge 
of the presiding Judge, to-wit : " That although the old 
deed was voluntary, and although the jury might believe that 
Snelling was a subsequent purchaser from Tompkins bana 
fde, for a valuable consideration, and without notice, yet the 
old deed was not void as to Spelling, unless it was made with 
intent to defraud, and that Tompkin's possession of the prop- 
erty being consistent with the old deed, was not evidence of, 
or Fas jiot a badge of fraud." 

5. Because the jury found contrary to the charge of the 
Court. 

6. Because the jury found contrary to law. 

7. Because the jury found contrary to evidence, and con- 
trary to the weight of the evidence. 

The presiding Judge overruled said motion, and refused 
the new trial, on each and all the grounds taken in the mo- 
tion. . 

This decision is the error complained of in this case. 

Johnson & Six)an for plaintiffs in error. 
E. H. BealIi for defendant in error. 

By the Court. — ^Jenkins, J., delivering the opinion. 

On the trial of this case in the Court below, the jury found 
f^>r the defendant, and the plaintiffs moved for a new trial, on 
several gronnds. The refusal of the Court to grant a new 
trial is the error complained of, and we proceed to examine 
the grounds overruled. 

1. A bill of sale from Samuel Tompkins (under whom 
r'Jainti£& claim) to the defendant, Snelling, for one of the 
-laves in dispute, was offered in evidence by the defendant, 
i^jiOQ proof that the maker and subscribing witness were both 
\*^d, and that the signature of the subscribing witness is the 



202 SUPREME COURT OF GEORGIA. 

Howard et al. , vs. Snelling. 

genuine signature of John Thornton, the witness ; plaintiff 
objected, that the proof of execution was insuflScient. The 
Court overruled the objection, and this is the first ground 
taken. 

The current of authorities sustains the decision. There 
are eases to the effect, that the proof of the handwriting and 
signature of the maker, where the witness is dead, will be 
sufficient. We know of none that it is indispensable; and 
there are many that the regular course is to prove the signa- 
ture of the subscribing witness. It is so laid down in Har- 
rison's Digest, vol, 1 : 2869, citing Page vs. Mann ; M. & M., 
79, Tenterden ; J. P. Kay vs. Brockman, 3 Car. & P., 555 ; 
M. & M., 286, Best. 

So, if one of the subscribing witnesses be dead, and the 
other beyond the process of the Court, it is sufficient to prove 
the handwriting of the witness that is dead. Adams vs, Kerr, 
1 B. & P., 360. 

It is the more proper in this case, inasmuch as the maker 
signed by his mark. 

This ground of the motion was properly overruled. 

2. The second ground alleges error in the charge of the 
Court, to this effect: "That the recital in the bill of sale, 
(above mentioned,) as to the receipt of the purchase money 
for the negro girl, Harriet, was prima facie evidence against 
the plaintiffs of the fact of such payment of the purchase 
money by Snelling," (the defendant,) and in the refusal of 
the Court to charge the contrary on request. 

The rule is, that such recitals in deeds and other instru- 
ments, are evidence against the maker, and against persons 
claiming under him by subsequent conveyances. 

In the case of Horn vs. Boss and Keith, 20th Ga. B., 21 0, 
221, (being a claim case, and one Harvard, defendant in ex- 
ecution,) a recital in a deed made by Harvard was relied 
upon by claimant, against plaintiff in execution,- Judge Bea- 
ning delivering the opinion, first establishes the fixct, that the 
plaintiffs in execution claim under Harvard, and then adds : 
"The only remaining question is, did they claim under him 
by a right that arose subsequently to the date of the deed. 



MACON, JANUARY TERM, 1861. 203 

Howard et al., vs. Snelling. 

and consequently, to the dat« of the recital ? The answer is, 
tF»at they did." He then concludes, that, by the general 
principles governing such cases, they are bound by the recital. 
The general principle he thus affirms — page 220 : " Decla- 
rations made by a person, if adverse to his interest when 
made, are evidence against him, and against all persons claim- 
ing under him by a right arising subsequent to the declara- 
tions," citing 1 Taunt., 161; 2 Phil. Ev., Cow & Hills' 
^otes, note 481. f 

Applying this rule to the case at bar, and taking the con- 
verse of the proposition to be true, viz : That declarations of 
a party do not bind those claiming under him by a right 
arising prior to the declarations, we hold that the Court erred, 
both in the charge given, and in the refusal to charge, as re- 
quested; the fact being, that plaintiflfe' claim, under Tomp- 
kins, by a deed made thirty years before the date of the recital 
in the bill of sale. 

Any other doctrine would be exceedingly dangerous, for 
it would put it in the power of the vendor always to defeat 
a prior voluntary conveyance, however fair and valid, by a 
simple recital in a subsequent deed. 

3. The third ground imputes error to the Court, in that 
he charged the jury : '* That the subsequent sale of the negro 
by Tompkins to Snelling, was evidence to be considered by 
them, of the intent of Tompkins, at the time of the execu- 
tion of the voluntary deed, to perpetrate a fraud on subse- 
quent purchasers or creditors; that it is a circumstance to be 
considered by them, in determining whether the voluntary 
deed was made with intent to defraud." 

It will be seen, when, in considering tlie next ground, we 
review the rulings of this Court on this whole subject, that a 
conveyance of property to a purchaser, for valuable consid- 
eration, without notice of a prior voluntary conveyance of 
the same property, is, itself, presumptive evidence of fraud 
in the prior voluntary conveyance. This being so, it was not 
error in the Court to instruct the jury, that they might con- 
sider the subsequent conveyance, for value, without notice, 
"oa a dreumstance^' in determining the question of fraud, <^ 



204 SUPREME COURT OF GEORGIA. 

Howard et cU.j vs. Snelling. 



no fraud, in the prior voluntary conveyance. It was equiv- 
alent to saying, such subsequent conveyance is not conclusive 
evidence of fraud, but it must be considered by you as evi- 
dence. 

4. EiTor is assigned against the verdict, as being contrary 
to the charge of the Court, as set forth in the 4th ground. 
(For which, see statement.) 

If this charge was correct, and if the facts warrant^ its 
, application to the case, the verdict was erroneous. If the 
charge were erroneous, the verdict should not be disturbed. 
We will subject this charge to the test of previous rulings of 
this Court upon this question of law, and it would seem to 
be appropriate, in this connection, to review those rulings, as 
an impression seems to prevail (erroneously, we think,) that 
they are inconsistent, some with others. 

The question came first before the Court, in the case of 
Fleming vs. Townsend, 6th Ga. R., 103. The Court, at that 
early day in its existence, seem to have been impressed with 
the importance of prescribing a rule, which would govern all 
cases wherein a contest should arise between volunteers and 
subsequent purchasers for value. Our impression is, that the 
profession, upon careful consideration of that case, will find 
in it a rule for almost any, whatever be its facts, involving 
this question, that may demand their consideration. Judge 
Nisbet, who delivered the opinion, carefully reviews the 
whole doctrine, considered with reference to the common law, 
and as affected by the statutes, 13th and 27th Elizabeth. 

The learned Judge states this to be a general rule of the 
common law, " That a voluntary conveyance is void, against 
subsequent bona fide purchasers, for a valuable consideration, 
without notice." 107. 

He considers the statutes 18th and 27th Elizabeth, and 
although, by the terms of the 13th, purchasers are excluded, 
and, by the terms of the 27th, personalty is excluded, he con- 
siders that the spirit of each act embraces both purchasers 
and personal property. The two being in pari mcUeria^ lie 
thinks, in all such cases, they should be construed together- 
as one act of legislation, and concludes this view with these 



MACON, JANUARY TERM, 1861. 205 

Howard et aZ., vs, Snelling. 

?rords, " It is clearly the policy of our State to extend the 
provisions of the statute of Eliz£j>eth (27th) to personal prop- 
erty/' 107. 

On the subject of notice^ he shows that " very many decis- 
ions in Sogland^ of the highest authority, go the extent that 
1 voluntary conveyance is void against a subsequent pur- 
chaser for value, even vdih notice," and quotes this comment- 
ing upon them by Chief Justice Marshall, in Cathcart et al. 
p«. Robinson, 5 Peters, 279, " These decisions do not main- 
tain that a transaction, valid at the time, is rendered invalid 
by the subsequent act of the party. They do not maintain 
that the character of the transaction is changed, but that tes- 
timony, afterwards furnished, may prove its real character. 
The subsequent sale of the property is carried back to the 
deed of settlement, and considered as proving that deed to 
have been executed with a fraudulent intent, to deceive a 
subsequent purchaser." Judge Nisbet adds, '* The fraud was 
made to depend alone upon the evidence furnished by the 
subsequent sale. That was held conclusive, even with notice, 
and could not be rebutted in some of the cases,'' — sundry 
cases as cited. Other cases are then cited, to show a relaxa- 
tion of this rule, in England, in favor of volunteers against 
purchasers, with notice. 

Stating, upon the authority of Chief Justice Marshall, 
that "the construction of the statute of Elizabeth was very 
unsettled in England at the era of the American Revolution," 
he thus concludes : " The decisions, however, unquestionably 
went so far as to make a subsequent sale to a purchaser, 
without notice, presumptive evidence of fraud, against one 
who had made a settlement, not on a valuable consideration, 
which threw on a person claiming under such a settlement 
the burthen of proving that it was bona fide. This is the 
nile of the Supreme Court of the United States, and of most 
of the Courts in this country. It seems consonant with 
i^ason and equity, and we adopt it as the rule of this Court." 
111. 

Here, then, we have involved. in this ruling three proposi- 
tions. 1st. A voluntary conveyance is prima facie yo'^^ 



206 SUPREME COURT OF GEORGIA. 

Howard et oZ. , vs, SneUing. 

against a subsequent purchaser for value, without notice. 
2d. This conclusion of law is reached by treating the subse- 
quent conveyance for value, without notice to the purchaser, 
as priBsumptive evidence of fraud in the voluntary oonvejr- 
ance. 3d. That this prima facie case may be rebutted by 
evidence of the boria fides, of the voluntary conveyance. 
Thus are we furnished with a general rule, the reason upon 
which it rests, and a qualification of it. Add to this the 
words next succeeding the above quotation, viz: " Our judg- 
ment is, that a subsequent purchaser is not protected, unless 
he buys without notice" and what immediately follows, declar- 
ing what shall be notice, (not necessary to our present pur- 
pose), and it will be found that the entire ground is covered. 

If the evidence, in any case, disclose a voluntary convey- 
ance simply, without the attendant circumstances, or motives, 
or inducements to its consideration, and subsequent convey- 
ance for value, without notice to the purchaser of the prior 
voluntary conveyance, and there stop, the general rule oon* 
trols, and the subsequent purchase is preferred. If, on the 
other hand, there be in the case aliwnde evidence that the 
voluntary conveyance was bona fide — ^free from all fraud, the 
qualification comes to the relief of the volunteo*, and gives 
him the preference. If, again, the evidence present a case of 
a voluntary conveyance, and subsequent conveyance for value, 
with notice to the purchaser of the prior voluntary convey- 
ance, and nothing more, the presumptive evidence of fraud 
is wanting — the subsequent purchaser has no prima fade 
case, there is nothing to be rebutted, and the volunteer is 
preferred. 

I propose, now, to refer to subsequent eases in which this 
question has come, in some one of its phases, before this 
Court, for the purpose of showing that the rule in Fleming 
and Townsend has not been infracted. The next case was 
that of Fowler vs. Waldrip, 10 Ga. R., 350. That was a 
case of a voluntary conveyance, and a subsequent conveyance 
for value. There was an attempt on the part of the pur. 
chaser for value, to show affirmatively and by aliunde evi- 
dence, fraud in obtaining the voluntary conveyance. Oppoeed 



MACON, JANUARY TERM, 1861. 207 



Howard et a2., va, Snelling. 



:o this, the volanteer introdaced a witness to prove that the 
voluntary conveyance was bona fide. Furthermore, there 
was evidence of notice to the subsequent purchaser. This 
Court held the notice sufiScient, and on tliat ground, placed 
their judgmeat in favor of the volunteer; thus bringing the 
case within the third class above enumerated, under the rul- 
ing in Fleming and Townsend, and in entire consistency with 
that case. 

The next case in order of time is that of Harper vs. Scott, 
12th Ga. R., 125. The great contest in this case, was upon 
the question whether or not there was a valuable considera- 
tion for the first conveyance. There was no pretence that 
the subsequent purchaser for value had notice of the prior 
conveyance. There was no evidence to rebut the presump- 
tive evidence of fraud. This Court, after careful and elab- 
orate examination of the evidence, arrived at the conclusion 
that the first conveyance was certainly voluntary, and then 
held that, according to the spirit of 27th Elizabeth, and 
according to the common law rule, that conveyance was void 
against the subsequent purchaser for value, without notice, 
thus bringing it under the first class of cases I have deduced 
from Fleming and Townsend. 

Next came the case of Clay ton vs. Brown, 17th Ga. R., 217. 
There had been a conveyance by one Reeves to Clayton, of 
certain property in trust for his wife and children. Subse- 
quently, a creditor of Reeves obtained judgment against him, 
levied on a portion of the property so settled, which was 
sold by the sherifl^, and bought by Brown, the defendant. The 
Court below, in charging the jury, treated it as a case between 
a volunteer and a subsequent purchaser for value, without 
notice. This Court held that the case had not been properly 
presented — that the purchaser, at sherifiT's sale, could be in 
no better position than the creditor under whose judgment 
he purchased — ^that it was a case between volunteers and 
creditors, in which the question of notice was itot involved — ^and 
for this error in the presentation of the case, as well as for 
miiidirectioa regarding continued possession in the settler, 



208 SUPREME COURT OF GEORGIA. 

Howard et aL, vs, Snelling. 

sent the case back for a re-bearing. This case was wholly 
aside from that of Fleming and Townsend; therefore, 

In Brown and others vs. Burke, 22d Gra. R., 574, the 
ruling was, that '^ a subsequent sale, without notice, by a 
person who had made a settlement, not on valuable consid- 
eration, is presumptive evidence of fraud, which throws on 
those claiming under the settlement, the burthen of proving 
that it was made bona fde" This is strictly in accordance 
with the ruling in Fleming and Townsend, inasmuch as it 
recognizes both the ground rule and the qualification of it, 
as there declared. 

I refer, lastly, to the unpublished case of Black et al. vs. 
Thornton, decided at Athens, November Term, 1860, which, 
however, in manuscript, was referred to in the argument of 
this case, and seemed to be regarded as in conflict with Flem- 
ing and Townsend, In that case, the Court below had given, 
in charge to the jury, the general rule adopted in Fleming 
and Townsend, viz: that a subsequent purchaser for value, 
without notice, of ei prior voluntary conveyance, would be 
preferred to a volunteer, and we sustained him in it. There 
was no attempt to rebut the presumptive evidence of fraud 
arising from the subsequent sale. So far £rom any such re- 
deeming evidence in favor of the voluntary conveyance, there 
were, in my view of the case, strong circumstantial proofs of 
fraud in the voluntary conveyance, wholly irrespective of the 
want of notice. We also sustained the Court in refusing 
certain charges asked, on the ground, that, if given, they 
would probably have conveyed to the minds of the jurors 
the impression, that the purchaser, without notice^ must go 
farther, and give aliunde proof of fraud in the making of 
the voluntary conveyance. That case came under the gen- 
eral rule in Fleming and Townsend. There was nothing to 
call for the application of the qualification, and, therefore, it 
was not given. There is no conflict whatever in the tiivo 

cases. 

The profession will readily acquiesce in the suggestion, 
that the opinion and judgment of the Court should always 
be considered in connection with the facts. To many general 



MACON, JANUARY TERM, 1861. 209 

Howard et al.j vs, Snelling. 

"iiles of law there are exceptions or qualifications, as well 
?ettled as the rule itself. When the facts of the case call 
ml y for the general rule, it is unnecessary to do more than 
apply U. If the facts demand the exception or qualification, 
the necessity to declare and apply that arises. If it were 
necessary, in each case, to refer to all the law appertaining to 
the |)art]cular branch of the science under consideration, each 
judicial opinion would swell to the dimensions of a treatise. 
Applying the law, thus understood, to the charge in ques- 
tion, and considering it in connection with what immediately 
preceded, (as set forth in the 3d ground,) it will appear that 
the charge was correct. It contains an instruction to the 
jury, to consider the presumptive evidence of fraud, arising 
from the act of making a subsequent conveyance, for value, 
without notice; and this is qualified by the instruction, that 
the prior voluntary conveyance is not necessarily thereby 
invalidated — ^that it must appear that the voluntary convey- 
ance was made with intent to defraud. This was rendered 
proper by aliunde evidence before the jury, tending to estab- 
lish the bona fides of the first conveyance. 

The application of this charge to the evidence, to ascertain 
whether or not the jury found contrary to the charge of the 
Court, fairly involves the consideration of the only remaining 
qnestion raised in the sixth and seventh grounds, viz : whether 
or not the jury found contrary to the evidence, or to the 
weight of it. Was there before the jury enough to rebut the 
presumptive evidence of fraud ? There was, first, the very 
significant fact that thirty year& intervened between the two 
conveyances. This was certainly a very long incubation 
of a fraudulent intent. This is not an immaterial considera- 
tion. I would say that, as a general rule, the strength of the 
presumption of fraud, arising from the second conveyance 
for value, without notice, and by relation, affecting the first, 
is, inversely, as the length of time intervening the two. As 
the latter increases, the former decreases. Where the inter- 
vening time is very short, an impartial mind would readily 
take the impression, that the first conveyance was but a 
Traudulent preparation for, or preliminary to, the second. 
Vol. XXXII — 14. 



210 SUPREME CX)URT OP GEORGIA. 

Howard et aLj vs, Snelling. 

But where, as in the present case, a very great length of time 
intervened, such a mind would reluctantly yield obedience to 
an arbitrary rule of law, requiring it to connect the two acts, 
and to characterize the first by the last. Such a mind would 
take a decided impression from that circumstance alone, and 
would readily avail itself of the privilege found in the relax- 
ation of the rule, to scrutinize the facts closely in search of 
evidence rebutting the presumption. Taking this directioD, 
we find, in the evidence, weighty circumstances surrounding 
the donor at the time of the execution of the voluntary con- 
veyance, strongly inciting him, by every consideration of sim- 
ple justice and of natural affection, to execute it. He had 
married, and soon found himself grossly imposed upon and 
outraged. His wife brought to his bridal bed the embryo fruit 
of illicit intercourse. This would have entitled him to a di- 
vorce a vincuh; but, waiving that right, he simply returned 
to those who gave her, their prostituted gift. Subsequently, 
and during her life, he very improperly and unwisely took to 
his bed and his board another woman, passing, with her, 
through' the mockery of a formal marriage. She, though 
not legally his wife, seems, by the faithful performance of a 
wife's duties, to have merited and to have received from him 
a husband's devotion. She bore him children, all unaware 
that the taint of illegitimacy fastened upon them at their 
births and clung to them through their lives. Under these 
circumstances, the voluntary conveyance before the jury, 
making provision for these children and for their mother, 
was executed. Such is the testimony of one of the subscrib- 
ing witnesses. The deed itself teems with references to the 
illegitimacy of his second marriage, and to the illegitimacy 
of the fruit of that connection. What mind can resist the 
impression, that the ruling idea in his mind in the making 
of this settlement was, that he owed it as a duty to those thus 
dear to, and dependent upon, him, yet incapable, by his own 
false step, of inheriting from him, to make some provision^ 
for them, by voluntary settlement? It is difficult to con- 
ceive of a stronger case of rebutting evidence, thaa is pre- 
sented by the great length of time intervening the two con- 



MACON, JANUARY TERM, 1861. 211 

^ The Mayor, etc., vs. Conly. 

vevances, and the other circumstances alluded to. Courts 
and juries should never lose sight of the fact^ that in such 
cases there may be such a thing as a fraud practised^ or at- 
tempted, by the donor upon the volunteer; and where such a 
case is presented^ they should be no less astute to defeat it, 
than in other cases to defeat fraud against a purchaser for 
value. Our conclusion is, that this verdict is contrary to the 
charge of the Court, and strongly and decidedly against the 
weight of evidence; and for this reason, as well as for error 
in the charge relative to the effect of the recital of payment 
in the bill of sale, reverse the judgment of the Court below 
overruling the motion for a new trial, and adjudge that the 
verdict be set aside and a new trial granted. 
Judgment reversed. * 



The Mayor and Councilmen of the City of Cuth- 

BERT vs, Conly. 

The Le^latare passed an Act on the 17th of December, 1859, confer- 
riQg upon the mayor and councilmen of the city of Cuthbert the power 
to regulate the retail of spirituous liquors. G. took out a county 
license from the Clerk of the Inferior Court to retail within the corpor- 
ate limits 6f said city, on the Slat of December, 1869 : ffeldj that C. 
was subject to the ordinance passed by the municipal authorities sub- 
sequent to the date of his license. 

Equity, in Randolph Superior Court. Decision made by 
Judge Perkins, at the May Term, 1860. 

The facts and questions exhibited by the record in this 
oa?e, are as follows, to-wit : 

By an Act of the General Assembly of Georgia, approved 
the 17th of December, 1859, the power and authority to 
grant license to retail spirituous liquors within the corporate 
limits of the city of Cuthbert, in the county of Randolph, 
wore vested in the mayor and councilmen of said city. On 
the 31st day of December, 1859, William G. Conly filed his 



212 SUPREME COURT OF GEORGIA. 

The Mayor, etc., V8, Conly. 

oath and bond with the Clerk of the Inferior Court, and 
obtained a license to retail spirituous liquors in the county of 
Randolph for the year 1860. On the 27th day of January, 
1860, the mayor and councilmen of said city passed an ordi- 
nance against retailing spirituous liqjiors within the corpoT- 
ate limits of said city, without obtaining license so to do 
from the corporate authorities* William G. Conly disre- 
garded the ordinance, and continued to sell spirituous liquors 
by retail, within said corporate limits, without obtaining 
license so to do from the said corporate authorities. On the 
7th of. February, 1860, Conly was summoned to appear 
before William H, Long, mayor of said city, to answer for a 
vialation of said ordinance against retailing spirituous liquors 
without license. Pursuant to said summons, Conly appeared, 
and insisted upon his right to retail spirituous liquors, under 
the license obtained by him from the Clerk of the Inferior 
Court, on the 31st day of December, without obtaining addi- 
tional licQuse from the corporate authorites of said city, inas- 
much asHhe said ordinance was not passed until the 27th of 
January, 1860. This defense of Conly was adjudged insuffi- 
cient by the mayor, and said mayor imposed a fine of $50 00 
on said Conly, and further adjudged that he pay the costs of 
the proceeding. Conly excepted to this decision of the 
mayor, and obtained a certiorari to have the said decision 
and judgment reviewed by the Superior Court, according to 
law. Pending the c^rtfordrr, Conly continued to sell spirit- 
uous liquors, by retail, within the ^limits of said city, with- 
out obtaining license from the corporate authorities, and on 
the 15th of February, 1860, he was again served with a 
summons to appear before the council to answer for the vio- 
lation of said ordinance. On the 15th day of February, 
1860, Conly made out and presented to His Honor, William 
C. Perkins, Judge of the Pataula Circuit, a bill in Ekjuity, 
alleging the foregoing facts, and also, that he is a poor man, 
of feeble health, and is informed and believes that it is the 
intention and purpose of said corporate authorities to impose 
fines of $50 00 on him every time he opens his stare aod 
sells spirituous liquors by retail, until he is harrassed into a 



MACON, JANUARY TERM, 1861. 213 

The Mayor, etc., vs. Conly. 

oomplianoe with the said ordinance, and pays to them, for 
license, the sum of $250 00, the license fee fixed by said 
ordinance. 

The bill prays, amongst other things, that the corporate 
authorities may be enjoined from further interfering with 
the complainaDt in his said business of retailing spirituous 
liquors ia said city, until the expiration of the license granted 
by the Clerk of the Inferior Court, as aforesaid. 

The presiding Judge granted the injunction prayed for, 
and that decision is alleged to be erroneous, and a reversal 
is asked for that cause. 

Arthur Hood for plaintiff in error. 
E. H. PliATT for defendant in error. 

By the Court. — Lumpkin, J., delivering the opinion. 

* 
A bill was filed by the defendant against the mayor and 

coaocil of the city of Cuthbert, praying an injunction against 
the said authorities from prosecuting him for retailing spirit- 
uous liquors under their ordinance. The injunction was 
granted, and this order is excepted to, and now assigned as 
error. 

The facts are as follows : The Legislature, on the 17th of 
December, 1859, conferred upon the corporate authorities of 
the city of Cuthbert the power to r^ulate retail licenses in 
that city. The defendant claims that he took out license 
from the Clerk of the Inferior Court of Randolph county, 
on the 31st of the same month, and that the city ordinance, 
which he is charged with violating, was not passed till the 
27th of January, 1860. He claims, therefore, the right to 
sell for one year, under his State license, and the decision of 
this Court, in Mayor, &c., of Rome vs. Lumpkin & Under- 
wood, (5 Ga. Rep., 447,) is cited in support of this position. 

Owing to relationship to one of the parties, I diJ not pre- 
side in that case; and while I am satisfied with the judgment 
of the Court, it not appearing affirmatively, that the Act of 
the Legislature, conferring upon the city of Rome the power 



214 SUPREME COURT OP GEORGIA. 

The Mayor, etc., vs, Conlj. 

to regulate the retail license, was passed . prior to the issuing 
of the license by the State, — they bear date on the same day— 
I must say, however, that the reasoning in that case, is not, 
to my mind, very conclusive. 

In Floyd vs. The Commissioners of the Town of Eaton- 
ton, (14 Gra. Rep., 354,) the question was elaborately discussed, 
and this Court he!d^ that where, by law, the corporate author- 
ities are empowered to grant license, the jurisdiction of the 
State over the subject is withdrawn : so, that from the 17th 
of December, 1869, to the 27th of January, 1860, there 
would have been no law upon the subject of license but for 
the Act of 1854, which was passed by the Legislature upon 
the suggestion of this Court, to provide for this defect in the 
law as it then stood. Under the old law, Wm. G. Conly 
could have sold, without license, until the Ordinance of 27th 
January, 1860, was passed. 

By the Act of 1854, (pamphlet, p. 83,) the retailer may 
take out license from the Inferior Court, to screen himself 
from punishment, until the municipal authorities that have 
been clothed with power to regulate licenses shall act upon 
the subject; still, he does so with his eyes open, and subject to 
any additional restriction which they may impose upon his 
business. Such was the intention and proper construction of 
the Act of 1854. 

The right to regulate the retail license, then, in the city of 
Cuthbert, having been conferred by the Legislature before 
the county license was issued to Conly, if, indeed, it ever was 
issued, we hold, that he took the same subject to the further 
action of the Board upon the subject, and that the Judge 
erred in restraining the mayor and councilmen from the right- 
ful exercise of their power in enforcing their ordinance. 

Judgment reversed. 



MACOX, JANUARY TERM, 1861. 215 

Bond vs. Whitfield. 



Bond vs. Whitfield. 

1. To make a paper established as a copy of a lost paper, under the Act 
of 5tb March, 1856, evidence in a suit brought under that act, against 
anj person, a party to that paper, it must have been established, so as 
to bind all parties liable under it. It must have been so established 
as to take the place of the original. 

2. If an inland bill of exchange shall have been accepted, and noted 
and protested for non-payment, and then lost, a copy of it, attempted 
to be established under the Act of 6th March, 1856, in order to make 
it evidence against the drawer, in an action brought under the pro- 
visions of that act, mast have been so established as to bind the ac- 
ceptors also. 

Complaint, in Baker Superior Court. Tried before Judge 
Allen, at the November Term, 1860. 

The single question in this case arose out of the following 
state of facts, to-wit : 

Matthew Whitfield, as administrator of John Tompkins, 
deceased, instituted proceedings, io Baker Superior Court, 
to establish a lost drafl^ of which the following is a copy, 
to-wit : 

" Albany, Geo., March 26, 1857. 

"On the first day of December next, please pay to the 
eartate of John Tompkins, or order, twenty-six hundred and 
forty-four dollars and eighty-one cents, value received, and 
charge the same to the account of yours, respectfully, 

JAMES BOND/* 

" To Messrs. Sims & Qheever, Albany, Geo." 

Across the face of this draft was written the following : 
" Sims & Cheever." Also the following : *' Noted for non- 
payment, December 4th, 1857; protested 5th December, 
1857, ly. G. Rust, Not. Pub." 

The petition prayed for a rule nisi, against Bond alone, 
and the rule issued against, and was served on, him alone, 
and at the term of the Court, to which the rule nisi was 
made returnable, the Court passed the following order : 

"Upon hearing the above and foregoing petition, it is 
ordered^ that the same be granted, and that the copy draft 



216 SUPREME COURT OF GEORGIA. 

Bond V8. Whitfield. 

attached, be, and the same is hereby established, in lieu of the 
lost original, and that the Clerk of this Court do furnish the 
plaintiff with a certified copy of this proceedings upon the 
payment of the costs thereof/' 

Simultaneously with the proceeding to establish the copy 
draft, the plaintiff, Mathew Whitfield, brought suit in said 
Court, against said Bond, to recover the amount of the draft. 

On the trial of the case, at the November Term, 1860, the 
plaintiff offered in evidence a duly certified exemplification 
of the proceeding to establish the copy of the draft, to the in- 
troduction of which, counsel for defendant objected, on the 
following grounds, to-wit: 

Ist. Because the* paper shown, was not a copy of the orig- 
inal draft, and was not established in terms of the law, so as 
to charge the defendant with the same. 

2d. Because the order or judgment of the Court establbh- 
ing said copy draft, was improvidently granted, and is void* 
because the acceptors of said draft, " Sims & Cheever," were 
not made parties to the proceeding to establish said copy 
draft, and had no notice of the same, and there is no reason 
or excuse given in said exemplification, for not making them 
parties thereto, and establishing the paper as to them, as wdl 
as to the defendant. 

3d. Because Sims & Cheever, being the parties primarily 
liable, and defendant only liable as security for them on said 
draft, they should have been made parties to the proceedings 
to establish said draft, and the same should have been estab- 
lished as to them, as well as to the defendant, which not 
having been done, the draft established is only partially 
established, and is not, therefore, a copy of the lost origiDa). 

The presiding Judge overruled the objection, and admitted 
the testimony, on the ground that the acceptors were not 
necessary parties to the proceedings to establish said draft, 
and on the further ground, that the objection came too late. 

This decision is the error complained of in this case. 

Irwik & Butler for plaintiff in error. 
Vason & Davis for defendant in error. 



MACON, JANUARY TERM, 1861. 217 

Bond vs. Whitfield. 

By ihe Court, — Jenkins, J., delivering the opiniou. 

The defendant in error proceeded, simultaneously, (under 
the Act of 5th March, 1856, Pamph., 238), to establish a 
copy of a bill of exchange drawn by plaintiff in error, and 
Ui institute suit against said drawer, on the lost paper. 

The bill was drawn upon Sims & Cheever, and by them 
accepted, and had been noted for non-payment. 

On the trial of this case, the plaintiff below offered in 
evidence a certified exemplification of the proceeding to 
establish a copy of said lost drafl, or bill of exchange. 
From this exemplification, it appeared that a formal order 
bad been passed nem. con., establishing a copy thereof. But 
it also appeared that Sims & Cheever, the acceptors, had not 
been made parties to that proceeding, and were, therefore, 
not bound by the judgment of the Court establishing it. 
In other words, there had been no copy of the lost paper 
established as to them. 

On this ground, the evidence offered was demurred to. 
The Judge overruled the demurrer, first, on the ground that 
the acceptors were not necessary parties to the exemplified 
proceeding ; and secondly, on the ground that the objection 
came too late ; should have been taken against the passage 
of the order in the exemplified proceeding, and this is the 
judgment excepted to. 

The object of the proceeding, under the Act of 1856, was 
to establish a copy of a lost paper, and that was the authority 
cOTiferred by the act. 

What was the lost paper? It was a draft or bill of ex- 
change, drawn by Bond, the plaintiff in error, in favor of 
defendant in error, upon Sims & Cheever, by them accepted, 
and afterwards protested for non-payment. Such was the 
paper when lost. The proposition will scarcely be denied, 
that in l^al contemplation, the established copy must have 
all tbe essential elements of the lost original. If it be a 
negotiable commercial security, the copy must specify the 
som of money to be paid, and the time of payment. It must 



218 SUPREME COURT OF GEORGIA. 

Bond vs. Whitfield. 

have all the parties appearing upon the lost original. Their 
mutual relations and liabilities must be unimpaired. These 
are essential elements, and if they, or any of them be lack- 
ing, in the copy established, it is not an established copy of 
the original. In this case, it is conceded, that every thing 
was done necessary to the establishment of the copy, except 
as to the acceptance of Sims & Cheever, and the noting and 
protest for non-payment. Had the paper been lost before 
the acceptance of Sims & Cheever, what was done would 
have been sufficient to establish a copy. But it appears that 
it had been accepted by them. This acceptance, connected 
with this commercial security, a new party — a party assum- 
ing a primary liability, it materially varied the liability, 
and changed the relations of Bond, the drawer, as a party 
•to the bill. After the acceptance, and loss of the paper, 
nothing is, nothing can be, a copy of it, which omits the 
acceptance. Even in what is called the established copy, 
appearing in this record, we find the words " Sims & Chee- 
ver,'' so written across the paper, as to denote the acceptance 
of persons to whose names those words answer. The defend- 
ant in error, or his counsel, could not get away from the idea 
that those names, occupying that position, in the original, 
must appear in the same position in the copy, and hence they 
were placed there. But the misfortune of the defendant in 
error is, that, as appeared by inspection of his own record, 
that portion of the copy was not established. It could not 
be established, without making Sims & Cheever parties to 
the proceeding. They were not made parties; therefore, in 
that proceeding, their ajcceptance was not established. The 
consequence is, that the paper, purporting to have been 
established, was not established, as a copy of the lost original. 
That had elements, had parties, which this has not. In that 
the relative liability of the plaintiff in error was different 
from what it is in this. 

It is no answer to say that it was established against Bond, 
who was the only party defendant below. The privilege 
given by the Act of 1856, to the party losing the original^ is 
to establish a copy of it, and then to use that copy as he 



MACON, JANUARY TERM, 1861. 219 

Adkins vs, Paul. 

might have used the original. But before he can so use it, 
he must^ in the form prescribed^ have established a copy of 
it. It was not to be a copy in hoBO verba et lUera, but it 
must be a copy in auhdance. The parties to the paper, and 
their relative liabilities, are matters of substance. Under 
this act, there can be no recovery against a party secondarily 
liable upon a copy which does not also fix the liability of 
the party primarily liable. 

But it is said this exception comes too late ; that the plain- 
tiff in error should have taken it in the proceeding, the 
exemplification of which was here tendered in evidence. In 
our view, this is no reply. We think there is an inherent 
defect in this paper, originating in the failure of the defend- 
ant in error to comply with the requisitions of the remedial 
Act of 1856, the aid of which he invokes. In this case he 
has chosen to rely, as his cause of action, upon a copy of a 
lost paper, established under the Act of 1856, but when he 
offers his evidence, it appears upon its face that it is not an 
eglablished copy of the lost original. He might have made it 
so, but he did not. Having failed to comply with the requi- 
sitions of the act, he cannot claim its benefit. The judgment 
of the Court below must be reversed. 

Judgment reversed. 



Adkins v8, Paul. 



The answer of one defendant cannot be read in evidence against his co- 
(defendant, when, instead of being any privity between the parties, they 
&re in an attitude of hostility to each other. 

In Equity, in Houston Superior Court. Decision made 
by Judge Lahab, at Chambers, on the 12th of June, 1860. 

The questions presented for adjudication in this case, 
depend upon the following state of facts, to-wit : 
In the year 1838, William Paul departed this life intes- 



220 SUPREME COURT OF GEORGIA. 

Adkins vs, Paul. 

tate^ in the county of Marion, leaving an estate worth 
$3,000 00 or more, consisting of one hundred acres of land 
in said county of Marion, one negro man by the name of 
Peter, and some other property. The deceased also left sur- 
viving him, his wife Catharine Paul, and his two daughter, 
Orra E. Paul and Sarah W. M. Paul, who were his only 
heirs-at-law. Catharine Paul took out letters of administrft- 
tion on the estate of said deceased, during the same year in 
which he died, and took possession of said estate, and re- 
tained and used the same until the year 1863, when the 
land was sold by her at administratrix's sale, for the sum of 
$1,026 00. The said land, from 1838 to 1853, was worth 
for rent, $100 00 per annum, which was received and appro- 
priated by the administratrix to her own use and benefit. 
From the death of the intestate up to the 25th of Januaiy, 
1856, the administratrix retained in her possession the negro 
man, Peter, worth the sum of $1,200 00, and, during all 
that time, appropriated the services and hire of the negro to 
her own use and benefit, the hire being $130 00. Catharine 
Paul also took out letters of guardianship of the persons and 
property of the said Orra E. Paul and Sarah W. M. Paul, 
and has never been dismissed or discharged from either the 
administration or guardianship, and has never made any 
returns to the proper court as such, since the year 1846. 
Previously to that time, she did make some returns, as 
administratrix, to the Court of Ordinary in Marion county, 
which were all destroyed by fire, at the burning of the ooun- 
house in said county. 

On the 25th of January, 1856, Sarah W. M. Paul, a 
minor, by her next friend, Mark H. Blandford, and Orra £. 
Paul, in her own right, being of full age, filed their biU in 
Equity, alleging the foregoing facts, and also that the said 
Catharine Paul was much involved and embarrassed with 
debts, and that judgment for a large amount had been 
obtained against her, and that she has no mx>perty, except 
two hundred and eighty acres of land in Houston oounty, 
and a negro girl by the name of Ann, worth $l,OO0 00 : 
that said negro girl was purchased with the funds and assets 



MACON, JANUARY TERM, 1861. 221 

Adkins vs. Paul. 

of the estate of William Paul, deceased, of which estate, 
with the rents, increase and profits thereof, the complainants 
are entitled to one-third each ; that at the October Term, 
1855, of Houston Superior Court, John Adkins obtained a 
judgment against the said Catharine, for $700 00, and that 
Jesse Tennison, also, at the same term of said Houston 
Superior Court, obtained a judgment against the said Catha- 
rine, for the like sum of $700 00 ; that fi, fas, issued from 
said judgments, and have been placed in the hands of the 
sheriff of said county of Houston, to be levied upon the said 
negroes Peter and Ann, and that if said negroes are sold 
under said executions, the complainants will be deprived of 
their just rights. 

The bill prays a discovery as to the facts alleged, also that 
the progress of said fi. faa.j as against said negroes, be en- 
joined, and that the negroes be, by decree of the Court, sold, 
and the proceeds applied to the payment of what is due com- 
plainants from the said estate of their deceased father. 
The injunction issued as prayed for in the bill. 
Catharine Paul filed her answer, admitting that the charges 
in the bill were true, and that since the filing of the bill, the 
said two hundred and eighty acres of land had been sold/ as 
her property, at sheriff's sale. 

The answers of John Adkins and Jesse Tennison, either 
deny a knowledge of the facts charged in the bill,^or admit 
their truth from information, except as to the purchase, by 
Catharine Paul, of the negro girl, Ann, with the money of 
the estate of William Paul, deceased. 

On that subject, Adkins answers that he has been informed, 
both by complainants and said Catharine, that the negro girl 
Ann belonged to the latter, and that said Catharine informed 
him that she bought the negro girl, Ann, with her own earn- 
ings. 

Tennison answers: that said Catharine told him that the 
negro girl, Ann, belonged to her in her own right ; that she 
worked for and bought her with her own money, had partly 
raised her, and did not want to sell her ; that she was then 



222 SUPREME COURT OF GEORGIA 

Adkiiis vs. Paul. 

mortgaged to one of her neighbors for one hundred and thirty 
dollars. 

Pending the bill, Sarah W. M. Paul died, and Orra E. 
Paul, her regularly appointed administratrix, was made party 
complainant in her stead. The negro girl, Ann, also had a 
child pending the suit. 

On the trial of the case, the complainants introduced the 
fi, fas, in favor of Adkins and Tennison, the latter of which 
was levied on the negro girl, Ann, and both of which had 
been levied on the two hundred acres of land, which was 
sold on first Tuesday in March, 1856, for $750 00. 

The complainants closed. 

The defendant proved, by several witnesses, that Catharine 
Paul claimed and asserted title to the negro girl from 1853, 
up to 1855, and said that she bought the negro girl, Ann, 
with her own money. Some of the witnesses testified that 
Orra Paul said the negro girl belonged to her mother, Catha- 
rine Paul, and others testified, that Catharine Paul asserted 
title to the negro in the presence of Orra E. and Sarah W. 
M. Paul, and that they acquiesced in the assertion of title, 
and that, at these times, Orra E. Paul was about twenty years 
old, and Sarah W. M. Paul was about seventeen years old. 
It also appeared, in evidence, that at one time Catharine Paul 
returned and paid taxes on some property as guardian of 
oomplaii\{ints, and afterwards, she ceased thus to return prop- 
erty. 

The jury returned a verdict and decree in &vor of com- 
plainant, Orra E. Paul, in her own right, for $1,000 00, 
and for the like sum, as administratrix of Sarah W. M. 
Paul, to be recovered of the said Catharine Paul ; and 
that the negro man, Peter, and the negro girl, Ann, and her 
child, were assets in the hands of Catharine Paul, as admin- 
istratrix of William Paul, deceased, to be administered, and 
subject to the claim of complainants, said negroes being col- 
lectively worth $2,100 00; and that the negroes, at that 
valuation, be delivered to complainant for the purpose of 
satisfying the said recovery in favor of the complainant; 
and that the injunction against Adkins and Tennison be 



MACON, JANUARY TERM, 1861. 228" 

Adkins vs. Paul. 

made perpetual, with leave to pursue the interest of Cath- 
arine Paul, in the hands of Orra E. Paul, as adminis- 
tratrix of Sarah W. M. Paul, after the debts and expenses of 
the administration of Sarah W. M. Paul's estate are paid, 
and that the defendants pay the cost of this suit. 

Counsel for Adkins and Tennison then moved for a new 
trial, on the following grounds, that is to sa}^ : 

1st. Because the verdict, so far as the negro girl, Ann, and 
her child, are concerned, is unsupported by evidence, as there 
is no evidence ; that said girl, Ann, was paid for with the 
funds of the estate of William Paul, deceased, save the answer 
of Catharine Paul, which was not legal evidence against the 
judgment creditors. 

2d. Because the verdict was contrary to the evidence. 
3d. Because the Court erred in charging the jury, that the 
answer of Catharine Paul, though not evidence against the 
other defendants, might be taken into consideration by them 
so far as issue was joined with it by the evidence introduced. 
4th. Because the verdict is against law and equity. 
The presiding Judge overruled the motion for a new trial, 
and that decision is excepted to, and its reversal asked on the 
ground that it was erroneous. 

John M. Giles for plaintiffs in error. 
A. M. Spear, for defendant in error. 

By the Court — Lumpkin, J., delivering the opinion. 

We are not quite sure that we apprehend the charge of the 
Court correctly as to the answer of Catharine Paul. It is 
conceded that it could not be evidence against the co-defend- 
ants — the Court, at the same time, holding that it might be 
taken into consideration by the jury, so far as issue was 
joined with it by the evidence introduced. That is, if we 
understand the charge rightly, that it might be received in 
rebuttal of the proof offered by Adkins and Tennison. Is 
iiot this making it evidence against Adkins and Tennison ? 
We think so most clearly; and yet we hold, and so his 



•224 SUPREME COURT OF GEORGIA. 



Adkins vs. Paul. 



Honor concedes, that it cannot be so used. The truth is, the 
answer of Catharine Paul is evidence against herself, and can 
be legitimately used by the complainants to charge her with 
the assets in her hands, which come from the estate of Wil- 
liam Paul, their father. But there is no such privity between 
her and the other defendants, as to authorize her answers to 
be used as evidence against them, or to rebut the testimony 
of their witnesses, which is, in fact, to use the answer against 
them. 

And while the proof outside her answer raises a probabil- 
ity, or at least a possibility, that the girl, Ann, and her child, 
were bought with the money arising from the sale of the land 
of William Paul, deceased, yet, apart from the answer of 
Catharine Paul, the evidence would be too unsatisfactory to 
warrant, perhaps, a finding to that effect. 

Why not examine Mrs. Paul on the stand? Does not she 
stand indifferent between the creditors and complainants? 
Or, at least, is not her interest neutralized? She is liable to 
her creditors on their judgments. She is responsible to the 
complainants for the money of the estate, which it is alleged 
went to pay for Ann and child. 

I merely make these suggestions, without holding myself 
bound by them. Our judgment is, that the Court erred in 
allowing the answer of Catharine Paul to be used against her 
co-defendants for any purpose. 

Judgment reversed. 



MACON JANUARY TERM 1861. 225 

,^ ■ 

Stockdale vs. Ttie State of Georgia. 

&rocKi)AXE VS. The State of Georgia. 

If one, in having and carrying abont his person, any of the weapons 
designated by the Act of 19th January, 1852, as ** deadly weapons)'' 
shall have and carry it in such an open manner that others, with whom 
he may come in contact, can see and know that it^is a pistol, or other 
weapon, he will not be guilty of a violation of that act, although 
some part of the weapon may be concealed from viv^. 

Misdemeanor, in Marion Superior Court. Tried before 
Judge WoRRiu^y at the September Term, 1860. 

On the 8th day of September, 1858, a bill of indictment 
was found, and filed, in Marion Superior Court, against John 
J. Stockdale, for having and carrying about his person, on 
the 2l8t day of August, 1858, a concealed pistol, in violation 
of law. 

The defendant having pleaded not guilty, was put to trial, 
at the September Term, 1860. 

On the trial, Morgan Kemp and John Kemp, witnesses 
for the State, testified : ^' That about the 28th day of August, 
1859, in the county of Marion, they saw the defendant, John 
J. Stockdale, have a pistol sticking in his breeches waistband^ 
nearly in front, about the suspender button ; that the butt 
and cock of the pistol could be plainly seen, the barrel being 
inserted beneath the pantaloons, and that the defendant had 
on no vest." 

The State having rested at this point, the defendant intro- 
duced Kilby Moore and James M. Moore, who testified: 
" That they were present on the occasion testified to by the 
whnesses for the State; that the pistol which the defendant 
had, at that time, could be plainly and distinctly seen; that 
there was no effort to conceal it; that the barrel was inserted 
beneath the pantaloons in front, whilst his coat was unbut- 
toned, and he had on no vest at the time; that the cock, 
cylinder, and caps of the pistol could be plainly and distinct- 
ly seen, and any person could know that it was a pistol, 
without any difficulty." 
Here the testimony closed, and the presiding Judge charged 
Vol. xxxn — 15. 



226 SUPREME COURT OF GEORGIA. 

Stockdale vs. The State of Georgia. 

the jury: "That if they believed, from the evidence, that 
i]\e defendant had a pistol, and did not carry the same in an 
open manner, and fully exposed to view, that then he was 
guilty, and it was their duty, in that event, so to find; that 
the meaning of the statute was, that the defendant had to 
carry the* pistol (if at all) entirely exposed to view ; that no 
matter if the h^tt and cock of the pistol were exposed, and 
any one could tell and know that it was a pistol, yet, if any 
part of it was concealed ; if any part of the barrel was stuck 
down beneath the pants, that it was a violation of law J' 

Counsel for defendant requested the presiding Judge to 
charge the jury as follows, to-wit; " That if the defendant 
carried the pistol, in an open manner, and so plainly and 
fully exposed to view, that any person could see and know 
that it was a pistol, that then the defendant was not guilty." 

The Judge refused to give the charge so requested, and 
the jury returned a verdict of guilty against the defendant 

A reversal of the judgment is asked, on the ground that 
the presiding Judge erred in his charge, and refusal to charge. 

Blandford, (represented by Geo. N. Lester), for plaintiff 
in error. 

< 

Peabody, (Solicitor General), for defendant in error. 

By the Court — Lyon, J., delivering the opinion. 

The plaintiff in error, Stockdale, was on trial for an 
alleged violation of the Act of 12th January, 1852, "to 
prohibit the sale of deadly weapons, and to prescribe the 
manner of carrying the same," etc., in having and carrying 
a certain pistol about his person, not in an open manner 
and fully exposed to view. 

Counsel for the accused requested the Court to charge the 

jury : " That if the defendant carried the pistol in an open 

manner, and so plainly and fully exposed to view, that 

person could see and know that it was a pistol, that th< 
the defendant was not guilty." The Court refused to give 

the request in charge, but charged instead, " that the mean- 



MACON, JANUARY TERM, 1861. 217 

Bond vs. Whitfield. 

By the (hurt. — Jeitkins, J., delivering the opinioD. 

The defendant in error proceeded, simultaneously, (under 
the Act of 5th March, 1856, Pamph., 238), to establish a 
copy of a bill of exchange drawn by plaintiff in error, and 
to institute suit against said drawer, on the lost paper. 

The bill was drawn upon Sims & Cheever, and by them 
accepted, and had been noted for non-payment. 

On the trial of this case, the plaintiff below offered in 
evidence a certified exemplification of the proceeding to 
establish a copy of said lost draft, or bill of exchange. 
From this exemplification, it appeared that a formal order 
had been passed nem. con.f establishing a copy thereof. But 
it also appeared that Sims & Cheever, the acceptors, had not 
been made parties to that proceeding, and were, therefore, 
act bound by the judgment of the Court establishing it. 
In other words, there had been no copy of the lost paper 
established as to them. 

On this ground, the evidence offered was demurred to. 
The Judge overruled the demurrer, first, on the ground that 
the acceptors were not necessary parties to the exemplified 
proceeding ; and secondly, on the ground that the objection 
came too late ; should have been taken against the passage 
of the order in the exemplified proceeding, and this is the 
judgment excepted to. 

The object of the proceeding, under the Act of 1856, was 
to establish a copy of a lost paper, and that was the authority 
conferred by the act. 

What was the lost paper? It was a draft or bill of ex- 
change, drawn by Bond, the plaintiff in error, in favor of 
defendant in error, upon Sims & Cheever, by them accepted, 
and afterwards protested for non-payment. Such was the 
paper when lost. The proposition will scarcely be denied, 
that in legal contemplation, the established copy must have 
all the essential elements of the lost original. If it be a 
negotiable commercial security, the copy must specify the 
sum of money to be paid, and the time of payment. It must 



228 SUPREME CX)URT OP GEORGIA. 



Roberts and another, vs, Mansfield. 



in consequence. Hence^tve think the Court should have 
given the jury the charge requested by counsel for accused; 
that^ in our opinion, being the true interpretation of the act 
under which defendant was indicted. 
Judgment reversed. 



Roberts and another vs. Mansfield. 

It is error in the Court to assnme in its charge to the jarj, that an 
important fact in the case has or has not been proven, especially 
where the evidence is doubtful. 

When one holds two notes, secured by mortgagCi and transfers the one, 
retaining the other, the mortgage lien accompanies the transfer of the 
note as an incident, and it would seem that in case the security ialls 
short of paying both notes, the holder of the transferred note has a 
preference over the mortgagee, who retains the other. 

In Equity, in Mitchell Superior Court. Tried before 
Judge Allen, at the May Term, 1860. 

The record in this case exhibits the following facts and 
questions, to wit : 

On the 1st day of August, 1853, William W. Faircloth, 
David Faircloth, and Riley B. Faircloth, executed two prom- 
issory notes of that date, for one thousand dollars each, one 
due the 1st day of January, 1855, and the other due 1st day 
of January, 1866, and both payable to James Mansfield or 
bearer. 

For the better securing the payment of said notes, the 
Faircloths, at the same time, executed a mortgage deed to 
Mansfield for three hundred and twenty acres of lot of land, 
N(J. 414, in the 7th district of Irwin county, and one hun- 
dred acres of lot of land, No. 8, in the 1st district of £aker 
county. 

On the 31st day of August, 1853, the said Mansfield 
assigned all his right, interest, and claim in the mortgage to 
one William H. Watson, for value received, without reooaise. 

On the 1st day of May, 1854, the said Mansfield trans- 



MACON, JANUARY TERM, 1861. 229 

Roberto and another) v$. Mansfield. 

erred one of the said notes to one Jesse Pate, as the agent 
^f one Hardy Treadwell, and executed and delivered an 
igreement in writing, of which the following is a copy : 

"Georgia, Dougherty County. 

'* Whereas, I have this day transferred to Jesse Pate a 
Droinissory note on William W. Faircloth, David Faircloth, 
md Riley B. Faircloth, for the sum of 81,000 00, dated the 
Lst day of August, 1853, and due on the Ist of January, 
1856, payable to me or bearer, which is secured by a mort* 
gage on three hundred and twenty acres of lot of land. No. 
414, in the 7th district of Irwin county, and one hundred 
acres of lot of land No. 8, in the 1st district of Baker 
county, which said mortgage I do hereby agree to have 
transferred to said Pate, before the note falls due, for the 
purpose of securing the payment of said note to said Pate, 
his heirs or assigns. 

"Witness my hand and seal, this 1st May, 1854. 

"JAMES MANSFIELD." [Seal.] 

On the 6th day of January, 1855, the said mortgage was 
reconveyed by Watson to Mansfield, and Mansfield brought 
an action, and obtained judgment, in Dougherty Superior 
Court, against all three of the Faircloths, for the amount 
due on the note which became due on the 1st of January, 
1855, and a fi. fa. was issued from said judgment, and 
levied upon the land described in the mortgage, on the 8tb 
of January, 1856. 

On the 5th of March, 1856, the land was sold at sherift'^s 
sale under the said levy, and bought by one W. W. Cheever, 
for $1,135 00, which paid oflF the fi. fa. in full, and left a 
sarplns of $122 60, which was afterwards paid to one of. the 
defendants, by an order of Court. 

The sale of the land was brought about by Mansfield, and 
he was present when it took place. The Faircloths were 
entirely insolvent, and the mortgaged land was the only 
security for the payment of the note. 

Pate delivered the note on the Faircloths, and the agree- 



230 SUPREAtE COURT OF GEORGIA. 

Roberts and another, vs, Mansfield. 

meat of Mansfield to Hardy Treadwell^ who knew nothing 
of there being another note^ to take precedence of payment. 
Treadwell transferred the note and the agreement to James 
T. Boberts, who paid full value for them, without any notice 
that there was another note, secured by the same mortgage, 
which wits to become due before the note so received bv him. 

Before the land was sold, Roberts, by his attorney, demand- 
ed a transfer of the mortgage from Mansfield, according to 
the terms of his written agreement with Pate, with which 
demand Mansfield refused to comply. 

On the 18th day of April, 1856, Roberts brought an ac- 
tion in Baker Superior Court, against Mansfield, to recover 
damages for a breach of his agreement to have said mort- 
gage transferred. 

To this action, Mansfield pleaded that there was a mistake 
in said written agreement, and that it failed to speak the real 
intention and true contract of the parties thereto, in the fol- 
lowing particulars, to- wit: First, that the name of "John 
N. Pate" should have been inserted in the agreement, instead 
of " Jesse Pate." Second, that the amount of the note should 
have been stated to be, "$100 05," instead of "$1,000." 
Third, that said agreement should have contained a reserva- 
tion of the right of Mansfield to have the note, due the first 
of January, 1855, paid out of the mortgaged property, before 
the same was transferred to Pate or his assignee. 

On the trial of the ease, the presiding Judge excluded the 
evidence offered by Mansfield, to prove the mistake in the 
agreement, on the ground, that, at law, parol evidence was 
inadmissible to contradict, add to, "or vary the terms of a 
written contract, and that Mansfield's remedy, if he had one, 
was by bill in Chancery, to reform the written agreement. 

Mansfield then filed his bill in Equity, alleging the mis- 
take in said agreement, to which bill, Roberts and Treadwell 
were both made party defendants. The bill also alleged that 
Pate was but the agent of Treadwell in the transaction, an 
that in said transaction, out of which the transfer of th 
note and the execution of said agreement to Pate a 
Treadwell was indebted to Mansfield some $453 00. The bi 



i 



MACON, JANUARY TERM, 1861. 231 

Roberts and another, vs. Mansfield. 

prayed an injaaction of the common law action ; a reforma* 
tiou of the agreement, and a decree against Treadwell for the 
sum due by him to Mansfield. 

Treadwell and Roberts filed their answers to the bill, in 
which they denied all knowledge of any mistake in the agree- 
ment, and Roberts insisted that he was an innocent purchaser 
of the note and agreement, for their full value, before the 
note was due, and without any knowledge or notice that there 
was another note secured by the mortgage, which was due 
before his. 

On the trial of the case, in addition to the foregoing facts, 
it appeared, in evidence, that Mansfield tendered to B. F. 
Lyon, Esq., the attorney of Roberta, but not of Treadwell, 
a written transfer of the mortgage, in which transfer it was 
stipulated that Mansfield retained the right to hold the mort- 
gage to secure the payment of the first note described therein, 
and that the transfer was made without recourse on Mans- 
field. The transfer was dated the 17th of December, 1855, 
and tendered, afler a demand had been made on Mansfield 
for a transfer, according to his agreement with Pate. 

Connsel for Mansfield offered said transfer in evidence, to 
which counsel for Roberts objected, on the ground that no 
mistake had, as yet, been shown in the written contract. This 
objection was overruled, and the transfer admitted, to which 
counsel for Roberts excepted. 

Pate testified : That, to the best of his rellection, the under- 
standing and contract was, that, after the note which first 
l>ecame due was paid, Mansfield was to give Treadwell full 
control of the mortgage ; that Mansfield refused to trans- 
fer the mortgage until the first or oldest note was paid, and 
stated that the transfer of the mortgage was unnecessary, as 
it was recorded. 

Col. David A. Vason testified : That Pate and Mansfield 
called on hira to draw up the agreement to transfer the mort- 
gage, and that he drew the paper, as he then understood the 
parties dec^ired ; that he asked where the mortgage was, and 
they stated that Mansfield had, before that time, transferred 
Jt to Watson, to whom the first note had been traded, and 



232 SUPREME COURT OP GEORGIA. 

Roberts and another, vs. Mansfield. 

that he would get it back from Watson before the second note 
. fell due; that R. F. Lyon refused the transfer tendered him, 
because it was conditioned, and reserved the right to control 
the mortgage for the security of the first note/ 

There was some other testimony adduced on the trial, but 
a sufficiency is here given to illustrate the decision of the 
Court. 

Counsel for Roberta moved to dismiss the bill, which 
motion was overruled, and the decision excepted to by said 
counsel. 

The presiding Judge then charged, and refused to charge, 
the jury, as specified in the motion for a new trial, given in 
a subsequent part of this statement. 

The jury returned a verdict in favor of complainant 
against both defendants, and against Treadwell, $453 00, 
principal, with interest and cost of suit. 

Counsel for Roberts then moved for a new trial, on the 
grounds : 

1st. That the Court erred in admitting, in evidence, the 
transfer from Mansfield to Treadwell, before any mistake in 
the agreement given to Pate had been shown ; and the Court 
erred in admitting Pate's testimony to contradict a written 
agreement, counsel for Roberts objecting thereto at the time. 

2d. Because the Court erred in not dismissing complain- 
ant's bill for want of equity, when the motion was made by 
counsel for Roberts. 

3d. Because the Court erred in charging the jury, that the 
agreement to transfer the mortgage was not negotiable, and 
that Mansfield could set up any defense against Roberts that 
he could have set up against Treadwell. 

4th. Because the Court erred in charging the jury, that 
the question of notice did not arise in this case, and that 
Roberts was bound by the mistake in ihe agreement, whether 
he had notice of it or not. 

5th. Because the Court refused to charge the jury, when 
requested by counsel for Roberts, " that this mortgage being 
given to secure both notes, if the land could only pay the 
sum due on the first note, that Roberts, the holder of the 



MACX)N, JANUARY TERM, 1861. 233 

Roberts and another, vs. Mansfield. 

second note^ getting it before due, and without notice of any 
equities attaching to it, was entitled to a j:>ro rata share of the 
proceeds of the sale of the land. 

6th. Because the verdict was contrary to law. 

7th. Because the verdict was contrary to the evidence, 
and the weight of evidence. 

The motion was overruled, and a new trial refused on all 
the grounds taken, and that decision is the error alleged in 
the record. 

Ibvtn & BuTLEB, for plaintiff in error. 

Yasou & Davis, Strozer & Slaughter,^ for defendant 
in error. 

By the Court, — ^Lumpkin, J., delivering the opinion. 

We think it best to remand this cause for a rehearing. It 
seems not to have been submitted to the jury in such a way 
as to direct their attention to the exact issue upon which it 
depends, and the law applicable thereto. 

Did the evidence justify the reformation of the contract 
between Mansfield and Pate, as to the transfer of the Fair- 
doth mortgage? 

The Courts uniformly hold, that the mistake should not 
only be distinctly alleged, but that the proof should be clear 
and satisfactory, to reform a writing. And it is reasonable 
and right that it should be. Pate testifies that it was the 
contract and understanding, that Mansfield was to have and 
hold a prior lien on the land under the mortgage, to secure 
the payment of the note which he retained ; and that Mans- 
field declared that he would not make the transfer upon any 
other terms. And yet, Mr. Vason, a clear-headed, skillful 
attorney, who seems to have been acting as counsel for Mans- 
field throughout, swears that he drew the instrument just as 
he was told to do by Mansfield and Pate, and yet, the paper 
contains no such, reservation. . 

It may be that what Pate states is true, namely, that the 
agreement was as he represents ; and. yet, the part left out 



234 SUPREME CJOURT OF GEORGIA. 

Roberts and another, vs, Mansfield- 

was intentionally omitted; the parties supposing it was bind- 
ing, thoagh resting in parol only. If this be so^ it cannot 
now be incorporated. Besides, this omission was not one of 
those occult matters that was likely to escape the notice of 
Mansfield and Pate. It was simply whether Mansfield 
retained the lien of the mortgage to pay his note first, or 
parted with it to Pate for Treadwell. 

This being the state of the testimony, the Court charged 
the jury that the question of notice did not arise in this 
case, and that Roberts, the present holder of the note traded 
to Treadwell, was bound by the mistake in the agreement, 
whether he had notice of it or not. The Judge, it will be 
perceival, without submitting it to the jury to find whether 
or not the mistake existed, under the somewhat stringent 
rules of evidence applicable to this doctrine, assumes that 
the mistake existed in the pointed language which we have 
quoted, and then tells the jury that Roberts is bound by it, 
whether he knew it or not. And in the bill of exceptions 
this charge stands alone, unqualified and unexplained by any 
thing which accompanies it. 

If the testimony establishing the mistake was clear and 
satifactory, we might sustain the judgment, notwithstanding 
the assumption by the Court that the mistake was proven. 
But the evidence not being of. this character, we may well 
suppose that the charge may have had a controlling effect 
upon the jury, coming, as it did, from the mouth of the 
Court. 

If it be true that the law, independent of any contract, 
transfers the mortgage with the note, so as to entitle the 
transferee to a preference over the mortgagee who held the 
first note, the proof in such case should be stronger still to 
restrict this right. (See Collins vs. Irwin, executor of Hitch- 
cock ; 4 Ala. Rep.) 

Indeed, for myself, I confess I am not very sure that not 
only the mortgage, but all contracts to further the collection 
of this second note, are transferred by operation of law with 
the note to the holder, and the note being traded befi)re due, 
the mortgage, as well as this contract between Mansfield and 



MACON, JANUARY TERM, 1861. 235 

Lowe V8, Bryant 

Pate, goes with the note, divested of any equity which might 
exist between the original parties. I would not commit 
myself, however, much less the Court, upon this last point. 
Judgment reversed. 



Lowe vs. Bryant. 

An executory contract, founded on no consideration— either good or 
valuable — is nude poet, and cannot be enforced. 

* 

In Equity, in Taylor Superior Court. Tried before Judge 
WoRRiLL, at the October Term, 1860. 

The facts and questions exhibited by the record in this 
case are as follows, to-wit : 

On the 25th day of October, 1856, William H. Lowe 
executed his will, the third item of which is as follows : 

" I give, bequeath, and devise to my beloved wife, Martha 
T. Lowe, for and during her natural life, the following 
property, to-wit : George, a boy eighteen years old ; Ellen, a 
woman about twenty-two; Lilly, a girl about ten; Ben, a 
boy about five ; Osborn, a man about fifty ; and Maria, a 
woman about fifty years old ; all the household furniture 
which I received by my said wife, upon our intermarriage, 
to-wit: one teaster bedstead and furniture; four trunks^ 
two wash-stands, three looking-glasses, and one brass clock ; 
and after the death of my said wife, Martha T. Lowe, my 
will is, that said property shall go to and become the property 
of my child or children, which my said wife may have 
living by me, to them and their heirs, forever; and in the event 
that my said wife should not have by me, any child or 
children, then said property to become the property abso- 
lutely of my wife, to be disposed of as she may think proper, 
by will or otherwise. Also, I give, bequeath, and devise, 
unto my said wife, Martha T. Lowe, for and during her 
natural life, the following lands, to-wit : Twenty-five acres 



236 SUPREME COURT OF GEORGIA. 



Lowe vs, Bryant. 



off of lot No. 224, in the east corner of said lot, in the 3d 
district of originally Muscogee, now Taylor county; and 
one hundred and twenty-five acres off of the west side of lot 
of land No. 242, in the 2d district 'of originally Muscogee, 
now Taylor county, with all the rights, members, and appur- 
tenances ; also, my match horses, rockaway and harness ; and 
at the death of my said wife, said land, rockaway, horses and 
harness, shall be equally divided among all my children, 
subject to the restrictions hereinafter mentioned." 

After giving several other specific legacies, and some money 
legacies, the testator directed, ^'all the balance of his prop- 
erty, of every description, not disposed of by his will, should 
be equally divided amongst all his children, including any 
children he might thereafter have, by his said wife — the land 
to be rented, and the negroes to be hired out, not exceeding 
fifteen months, (discretionary with his executors, they taking 
into consideration the time of year in which he might die, 
to govern them, as to the length of time, of renting and hir- 
ing,) and the proceeds of the rent and hire thereof, to be ap- 
plied to the payment of his debts, and the specific legacies in 
his will." 

On the same day that the will was executed, the testator 
executed a codicil to said will, by the second item, of which 
the testator bequeathed to his wife, a "certain negro fellow 
named Edmund, about forty-four or five years of age, during 
her natural life, and aft;er her decease, said negro to go to bis 
daughter, Martha Ellen." 

On the 31st day of October, 1855, the said William H. 
Lowe departed this life, leaving said will and codicil in full 
force. 

On the 6th of November, 1856, the will' and codicil were 
duly propounded, proven, and recorded, before the Coart of 
Ordinary, of said county of Taylor. 

The estate of the testator was worth $15,000 00 or 
$20,000 00, after the payment of all the legacies, and the 
debts against it. 

William B. Lowe, one of the executors nominated in said 
will, qualified as such, and, on the 5th day of November, 



MACON, JANUARY TERM, 1861. 237 

Lowe t». Bryant. 

1855, indaced the said Martha T. Lowe to execute the fol- 
lowing agreement in writing, to-wit: 

"Geobgia, Tayix)b County. 

" I, Martha T. Lowe, widow and relict of William H. 
Lowe, late of said county, deceased, for and in consideration 
of the dying request of said deceased, and for and in consid- 
eration of the payment of the debts of the deceased, do agree 
and consent, that all the rights, title and interest which I 
may have in said estate, by reason of the last will and testa- 
ment of said deceased, may be kept and used in. common 
with the balance of the property of said estate, for the pur- 
pose of making a crop on the farm of said deceased, for the 
year 1856, by the executor of said will and testament, to-wit: 
William K. Lowe ; that all my said interest in said estate, 
to-wit : certain land and negroes, and other personal proper- 
ty bequeathed to me by said deceased, in and by virtue of 
said will, may be managed, used and controlled by said execu- 
tor, for the purpose aforesaid, free from any charge by me 
upon said estate. As witness my hand and seal, this 6th of 
November, 1855. 

" MARTHA T. LOWE. [Seal.] 
"Attest, EHas W. Bowden.'' 

On the 15th day of January, 1855, the said Martha T. 
Lowe having become dissatisfied with the agreement, repu- 
diated the same, and demanded from the said William R. 
Lowe, the l^acy and property bequeathed to her by said 
will and codicil, which legacy and property the said William 
R. Lowe refused to deliver to her, but retained said property 
in l)is hands, control and possession, during the year 1856, 
which was worth for that year $694 00 hire. 

Under these circumstances, the said Martha T. Lowe filed 
her bill in Equity, against the said William R. Lowe, execu- 
tor, to set aside said agreement, and to compel him to pay to 
her, the hire of the negroes bequeathed to her, and used by 
the executor during the year 1856, on the ground, that the 
said agreement was void for want of consideration, and be- 



238 SUPREME COURT OF GEORGIA. 

Lowe vs. Bryant. 



cause the legacy bequeathed to the said Martha T. Lowe, in 
and by said will, was not in any manner chargeable with the 
payment of the debts against the estate of the testator. 

Pending the bill, William R. Lowe, the executor, died, 
and John W. Bryant, who had been duly appointed admin- 
istrator, de bonis non, cum teatamento annexo, was made a party 
defendant in said bill. 

At the October Term, 1860, the case came up for trial, and 
upon the facts herein before stated, the jury returned a ver- 
dict in favor of the ^' complainant for the sum of $694 00, 
and cost pf suit." 

Counsel for defendant then moved that said verdict be set 
aside, and a new trial awarded, on the following grounds, 
to-wit: 

Ist. Because the verdict was contrary to evidence. 

2d. Because the verdict was contrary to the weight of evi- 
dence. 

3d. Because the verdict was contrary to law. 

The presiding Judge passed an order setting aside said 
verdict, and awarding a new trial, to which counsel for 
complainant excepted, and now asks, that said decision be 
reversed for error. i 

James T. May, for plaintiff in error. 

Grice & Wallace, Smith & Pou, for defendant in error. 

By the Court. — Lumpkin, J., delivering the opinion. 

Was the contract entered into by Mrs. Lowe, with tlie 
executor of her husband, binding? We hold not — ^for the 
obvious reason that there is no consideration to support it. 
Had the contract been executed, it might have been other- 
wise. But it was executory. The agreement that the n^ro^ 
and land, left to her by her deceased husband, to be workfwl 
by the executor to pay the debts of the estate, was entered 
into in November, 1855. Early in January, 1856, before 
the crop was pitched or planted, she repudiated the contract, 
and demanded her property. It ought to have been deliv- 



MACOX, JANUARY TERM, 1861. 239 

. Joiner et al, , V8, Borders. 

ered to her ; and the executor refusing to make the surren- 
der, is bound to account to her for the rent of her land and 
hire of her negroes. 
Judgment reversed. 



JoiKEB et al, v8. Borders. 

1. The act of entering upon a tract of land, splitting a few hundred rails, 
and enclosing and ploughing an acre or two« without planting or cuTti- 
vating anything on the land, and then abandoning it entirely for three 
jears, is in law a simple trespass. Such act, afler a lapse of three 
yean, can not be connected with four years of actual, adverse posses- 
sioiij 80 as to constitute seven years' adverse possession. 

2. To perfect a statutory title, under color of title, there must be adverse 
aod continuous possession for seven years. 

Ijectment^ in Taylor Superior Court. Tried before Judge 
^'ORRILL, at October Term, 1860. 

The facts of this case are stated in the opinion of the 
Court. 

By the Court, — Jenkins, J., delivering the opinion. 

The plaintiff, Borders, having sufiBciently accounted for 
the absense of the original, put in evidence a copy of a grant 
from the State of Georgia to himself, proved possession in 
the defendant at the time of the commencement of the action, 
proved the locus iu quo and closed. The defendant pleaded 
the statute of limitations, and relied upon seven years' pos- 
st'ssion, under color of title. The color of title was suflS- 
ciently shewn. The question in the case, was as to the suffi- 
ciency of the evidence of possession. The proof on that 
i^oint is, that two persons, as tenants of the defendant, in the 
month of June, 1851, entered upon the land, split rails, 
enclosed about an acre and a half of land, and ploughed or 
Nroke up the land enclosed, but planted nothing. It was 
then abandoned until 1854, when the. same tenants built 



240 SUPREME COURT OF GEORGIA. 

Joiner et al, , vs. Borders. 

houses, each for himself, as such tenant, and occupied the 
houses so built, continuously, until the trial. Plaintiff's 
actions against them, (afterwards consolidated,) were com- 
menced on the 6th day of August, 1858, a little more than 
seven years from the time of first entry on the land, and the 
enclosure in 1851. During the three years intervening the 
making of that small enclosure and the actual settlement in 
1854, there is no evidence that the defendant below ever 
entered upon the land. The case turned upon the question 
of adverse possession in the defendant, for a period of seven 
years anterior to the commencement of plaintiff's actions. 

The Court charged the jury, that under the above state of 
facts, there was no adverse possession, sufficient to sustain 
defendant's plea, prior to 1854. To this charge, plaintiff in 
error excepts. In Morrison et al. vs. Hays, 19 Gfa. Bep., 
294, this Court held, that " one of the necessary elements of 
adverse possession is its continuity." 

In Holcombe vs. Austell et al.y 19 Gra. Rep., 604, it was 
held, that '^ possession cannot give title under the statute of 
limitations, if the possession is not continuous and adverse." 
There, as here, was color of title. There, as here, the 
defendant, asserting adverse possession, had entered upon 
the land more than seven years before the commencement of 
the action. There he had erected a still-house on the land, 
and had distilled peach brandy there, in the peach season^ 
from 1837 to 1846, a period of nine years. Aflber that, he 
made no use of it until 1849, when he improved it, moved 
upon it, and had occupied it continuously, until the com* 
mencement of the action in 1850. Judge Benning, deliver- 
ing the opinion, says : " The first possession of Holcombe, 
(the defendant,) was not continuous ; and such as it was, it 
was that of a trespasser, a mere squatter. ' And the poeses- 
sion of a mere trespasser is to be deemed in subordination to 
the right of him who has the true title. This possesnon, 
too, was confined to the mere spot on which the still*house 
stood." That was a much stronger case of adverse posaes- 
sion than this. It is contended here, that the mere aet of 
splitting a few hundred rails, enclosing and ploughing^ 



MACON JANUARY TERM 1861. 241 

Crown vs, Leonard k Goodale. 

acre and a half, nothing more, was enough of adverse pos- 
session to cover a period of three years. If three years, why 
not seven ? It is thas apparent to what an absurd conclu- 
sioD of law this argument would lead. 
Judgment affirmed. 



Crown vs. Leonard & Goodale. 

A Court of Chancery will not interfere by injunction . to restrain a tres^* 
pass, unless in a special case, where the remedy at law is not com- 
pkte. 

In Equity, in Bibb Superior Court. Decision on motion 
to di^olve an injunction, made by Judge Lamar, at the 
November Term, 1860. 

Patrick Crown exhibited his bill in Equity against John 
C. Leonard and James A. Goodale, in which it is alleged : 

That he is the owner of, and in possession of, that portion 

^•f lot No. 4, in square No. 56, fronting on the comer of 

Bridge and Pine streets, lying on the north-west side of a 

branch which runs through said lot from the sewer in Pine 

<reet fronting said lot, containing one-quarter of an qcre, 

more or le^, and situated in the city of Macon, in Bibb 

ci>unty, and worth 83,000 00 ; that he occupies the lot, 

chiefly as a dwelling place for himself and family, although 

there is also a store house upon it; that on the 27th of 

Aprily 1860, the defendants entered upon said premises and 

began to erect, and are continuing to construct a wooden 

baildifl^ or tenement, part of which is on the aforesaid lot, 

snd on dke line between the same and the adjoining lot, 

r/iVidbd by the branch aforesaid ; that notwithstanding the 

ill fi ni%ilfn do not deny complainant's claim to the premises 

iat ajtouigid, and notwithstanding they have been notified 

lo dedWk- fiwi their trespass and invasion of the complain- 

iDt^s WliUL'^femiae^ yet they disregard his rights, and persist 

in tlMiir WSBtaw&d invasion of said premises ; that hoping to 



242 SUPREME COURT OF GEORGIA. 

Grown vs. Leonard & Goodale. 

arrest them in the erection of said buildings the complainant 
commenced an action of trespass against the said defendants, 
returnable to the Inferior Court of said county of Bibb, but 
they still continue erecting said building on complainant's 
premises; that the said tenement is being erected across said 
branch on both of said lots, and in such a manner that com- 
plainant cannot build a wall, fence, or other structure, to 
prevent the high waters, frequently flowing through said 
branch, from washing away the earth and soil on his said 
lot, and that he cannot even run a common fence or enclo- 
sure for said lot, without attaching the same to said building, 
or so far from it and the branch as to yield up a large por- 
tion of his lot, which is valuable to him ; that said lot being 
small, and containing only about one quarter of an acre of 
ground, he is unwilling to give up or dispose of any portion 
of the same, and no amount of damages which he could 
probably recover in said action of trespass or otherwise can 
adequately compensate him for the injury and inconvenience 
of having a portion of said building on his lot, especially 
when the relative situations of the said two lots are cou- 
sidered. 

The bill prays an injunction, restraining the. defendanl?. 
from erecting said building. 

The bill was sanctioned, and the injunction issued as prayed 
for, on the 30th of April, 1860. 

The defendants filed a joint answer to the bill, in wliicli 
they admit the claim of complainant, and that he has a title 
of some sort to the lot he claims in the bill, but they deny 
that the line between the two lots is where the complainanl 
insists it is, but that the true line was to run from the ceutn 
of the arch of the culvert down the middle of the branch 
that since that time, the complainant, without the consent o 
Leonard, or his mother-in-law, who owns the adjoining lo 
on which they are building, changed and diverted the car 
rent of said branch, so as to turn it on the said adjoining ^o^ 
and to cut o(F a part thereof; that said building complaine 
of is within the boundary pointed out by compIaicia.nt i 
Groodale whereon to build the house; that said building \%-x 



MACX)N, JANUARY TERM, 1861. 243 

Crown vs. Leonard & Goodale. 

)t liindei? compIaiDant from building a fence on the line of 
^ lot, as pointed out by him to the defendant, Leonard, but 
ffeodants admit that to change the true line and make it 
in where complainant wishes It to run, might prevent com- 
ainant s fencing as be charges; that Goodale has no claim 
cither lot, but was simplj employed by Leonard to build 
le house. 

Complainant amended his bill by alleging : That Leonard 
IS no property, and is unable to respond in damages to com- 
alnant in said action of tresspass or otherwise ; " that if 
i pretends to hold any property of any kind, complainant 
rays that he may answer when and where he acquired it, 
id from whom, and whether the title thereto is in him, or 
I him for the benefit of some other person, and the value of 
le same; that the branch as it originally ran was the divid- 
ig line between said lots, that it has never been changed by 
raplainant^s consent, and that so far from agreeing that said 
ou5e or any part of it should be built on his lot, he refused 
) permit Leonard and his hands to place scaffolding on his 
>t with a view to build the house, knowing that if he gave 
efendant, Leonard, an inch, that he would take an ell ; that 
)DQplainant verily believes that Mrs. Cobb owns the lot ad- 
)ining complainant's, and that she never claimed that the 
ne of her lot extended further than said branch." 

Leonard, in answer to the amended bill, says : that he is 
ot insolvent, but is worth $2,000 00 over and above all his 
abilities; that the branch, as it originally ran, was the line, 
ut it had been changed, by the complainant, by dams and 
Utructions, so as to throw off the water which, in times of 
«ivy rain, washed a part of complainant's lot, and that if 
bci run of the branch be the line, as his co-defendant con- 
^nds, no part of the building is on complainant's lot ; that 
'^ving suffered loss and injury by the injunction in this case, 
'2 tenders to this Court ample security, in any reasonable 
^ra, to indemnify complainant for any damages he may re- 
aver, in his action of trespass against defendant. 

1 pon the coming in of the answer, a motion was made to 
li^olve the injunction. 



244 SUPREME COURT OF GEORGIA- 

Grown vs. Leonard & Goodale. 

Pending this motion^ and before the argument of the same^ 
counsel for complainant moved to except to Leonard's au^wer 
to the amended bill, and to take an order requiring him to 
answer over, the cause of exception being his failure to answer 
the charge in said amended bill, as follows, to- wit: "K saiJ 
Leonard pretends to hold any property of any kind, com- 
plainant prays that he may answer when and where U 
acquired it, and from whom, and whether the title thereto ii 
in him, or in him for the benefit of another, and the t^q^ 
of the same." 

The presiding Judge overruled the motion and require: 
the cause to proceed, to which ruling counsel for complaioan 
excepted. 

Upon the hearing of the motion to dissolve the injunctiioi 
the complainant offered, in support of the all^ations of hi 
bill, a deed from said Leonard to complainant, dated the 25tl 
of February, 1859, covering the lot described in the bill 
with the additional description that it was " the portion o 
said lot deeded by Lucinda Gilbert to said Leonard." 

Also an affidavit of Henry Wood, in which he dej^ows 
that the defendant, Goodale, testified as a witness on the tm 
of a peace-warrant against camplainant, that just befor 
commencing to erect said building, Leonard asked complain 
ant if he might not put one of the pillars of the house c^ 
complainant's side of the branch, and that oomplainaii 
refused permission so to do. 

Also the affidavit of William Wood, identifying a plat o 
the relative situation of the two lots and the house, in whlcl 
he states that if the branch is the dividing line between th 
two lots^ the house is from one and a half to three and : 
half feet over the line, on the complainant's lot. 

After argument had, the presiding Judge passed an orJe 
" that the injunction be dissolved, and the bill be dismiss^ 
at complainant's cost, when the defendant, Leonard, shall fil< 
with the Clerk of this Court, a bond in the sum of $500 l^' 
with good security to be judged of by the Clerk, to indemnifj 
the complainant for any damage he may recover in his actioi 



MACON, JANUARY TERM, 1861. 245 

Janes vs, Horton et (U. 

trespass now pending on the common law side of this 
)Qrt, and that tMs order be entered on the minutes." 
The decision of the Judge, in passing this order, and his 
fasal to hear the exceptions to the defendant's answer to 
e amended bill, are the two errors assigned in the record in 
Is case. 

L\xiER & Anderson, for plaintiff in error. 

Bailey & deGraffenreid, for defendant in error. 

Bij( the Court. — LuMPKiN, J., delivering the opinion. 

Was the Court right in dissolving the injunction in this 
«, and dismissing the bill ? We think so. The complain- 
it's remedy at law, either by action of trespass or eject- 
ent, is adequate and, complete. In England, a Court of 
^laity will not interfere ordinarily by injunction, until the 
tie has been decided at law. To begin in Equity here, 
ould, unless there was a sufiBcient reason for it, be a bad 
ractice. 
Jndgment affirmed. 



A5BS, for the use of William B. Vanover, administrator, 

etc., vs. Horton, et al. 

* A. party who has contracted with another, to do a particalar thing, 
npoQ the happening of a certain event, is bound, when that event hap- 
pens, ▼ithin his knowledge, to do the thing contracted to be done, 
*iibout notice or order from the other party — unless such notice or 
flemand be required by the express stipulations, or the peculiar nature 
of the contract. And where the event to happen is the judgment of 
* Court in a case in which the person contracting to do the thing was 
a party, the Court will presume his knowledge of the judgment. 

" In an action, by a sheriff for the use of others, upon an illegality 
wnd, an entry by the sheriff, on the execution arrested by the illegal- 
ly, that "the property was not delivered by the defendant in execu- 
tion, on the day on which it was advertised for sale, atler judgment, 
overruling the illegality, hpriTna facie evidence of n on- delivery. 



246 SUPREME COURT OP GEORGIA. 

Janes vs, Horton et al. 

- ■ I II I I ■ 

Debt, in Terrell Superior Court. Tried before Judge 
Perkins, at the May Term, 1860. 

This ease involves the facts following, to-wit : 
A mortgage jJ. /a., issued from the Inferior Court of Lee 
county, in favor of William G. Howard and John Heutz, as 
administrators of Thomas Howard, deceased, against William 
Horton, dated thn 21st of June, 1845, was on the 28th of 
June, 1845, levied by William Janes, the sheriff of said 
county, on the following negro slaves, described in the mort- 
gage Ji. fa.f to-wit : John, Edmund, Harriet and her boy 
child^ and Dice. The defendant in Ji, fa,, William Horton, 
filed an affidavit of illegality to the Ji. fa,, and the sheriff 
left the negroes in his possession, upon his giving bond, with 
Clem. Jarnin, Thomas Y. Berry, Andrew J. Berry, and C. 
R. Alexander, as his securities, for the forthcoming of the 
negroes. The following is a copy of the bond : 

" Georgia — Lee County : 

" Know all men by these presents, that we, William Hor- 
ton, Clem. Jarnin, Thomas Y. Berry, Andrew J. Berry, aud 
C. R. Alexander, are held, and firmly bound unto William 
Janes, sheriff of said county, in the sum of three thousand 
dollars, for the true payment of which, we bind ourselves, 
our heirs, and legal representatives, jointly and severally, 
firmly by these presents. Sealed with our seals, and date< 
this 28th of June, 1845. 

"The conditions of the above bond are such, that whereat 
certain negroes, to-wit: Dice, Harriet and her child, Johr 
and Edmund, have been levied on by virtue of a mortgag 
Ji, fa., in favor of John Hentz and William G* Howan 
administrators of Thomas Howard, deceased, against the sail 
William Horton, and the said Horton has taken an illegali^ 
to said Ji./a., in terms of the law. 

" Now, if the said Horton, or his securities for him, shs^ 
well and truly deliver to said sheriff said property, if sai 
illegality shall be set aside, then this bond to be void, else i 
remain in full force and virtue." 

The bond was duly signed by Horton and his securitji 
and delivered to the sheriff. 



MACON, JANUARY TERM, 1861. 247 

Janes vs. Horton et al. 

At the August Term, 1845, of Lee Superior Court, the ille- 
gality was overruled, and the fi» fa. was ordered to proceed. 

The sheriff advertised the property for sale on the first 
Tuesday in November, 1845, and Hprton and his securities, 
(ailed to deliver the negroes to the sheriff, according to the 
terms of the bond. 

William G. Howard and John Hentz both died, and John 
B. Vanover was regularly appointed administrator de bonis 
non of Thomas Howard, deceased. . 

On the 9th of August, 1845, suit was instituted, in Lee 
Superior Court, in favor of the sheriff, for the use of the 
administrator, de bonis non, against the securities on the bond, 
to recover damages for the breach thereof, Horton having 
left the State, carrying with him the negroes. 

On the trial of the case, (which was transferred to Terrell 
county, where the same was formed,) the plaintiff offered in 
evidence: First, the mortgage^. /a., on which were sev- 
erally indorsed, the levy on the slaves mortgaged, an entry 
of illegality interposed, and* then this entry : " The above 
property being advertised for sale this day, the defendant 
failed to produce the same, according to his bond, 4th Novem- 
ber, 1845, William Janes, sheriff." Secondly, an extract 
from the minutes of Lee Inferior Court, August Term, 
1845^ showing that the illegality taken to said fi.fa. was 
overruled, and said fi. fa. ordered . to proceed. Thirdly, the 
bond declared on, which was objected to by counsel for de- 
fendant, on the ground " that the same was not a statutory 
bond, and that the plaintiff must show affirmatively, a de- 
mand on the defendants for the property, and their refusal to 
deliver it, before the action could be maintained, and that 
as there was no averment in the plaintiff's declaration that a 
demand was made before suit brought, the bond could not 
go to the jury, unless such averment was made by way of 
amendment." 

The presiding Judge admitted the bond, but ruled that the 
plaintiff must aver and prove a demand of the property, and 
a failure or refusal to deliver it, before he could recover, to 
which the plaintiff excepted. 



248 SUPREME COURT OF GEORGIA. 

Janes v«. Horton et a2. 

The plaintiff then offered the depositions of William Janes, 
to prove that the negroes were never delivered according to 
the obligation of the bond^ which testimony^ (upon objection 
made^) the presiding Judge repelled, on the ground that he 
was one of the plaintiffs, and was interested in the event of 
the suit, and was therefore an incompetent witness. To 
which decision plaintiff excepted. 

Plaintiff then closed, and, on motion of counsel for defend- 
ant, the Court awarded a non-suit against the plaintiff. 

These several rulings and decisions of the Court are com- 
plained of as errors, and the plaintiff, by" his writ, seeks to 
reverse the judgment because of such errors. 

Irvin & Butler, Strozier & Hood, for plaintiff in 
error. 

W. A. Hawkins, and Warren & Warren, for defend- 
ant in error. 

By the Court — Jenkins, J., delivering the opinion. 

The record in this case presents two exceptions, one of 
which was taken to the rejection of the depositions of Wil- 
liam Janes, sheriff, who is the nominal plaintiff, and whose 
testimony was offered to prove that the principal obligor did 
not deliver the negroes in compliance with his bond. 

This evidence was rejected, on the ground that the witness 
was interested in the event of the suit, and therefore incom- 
petent. To the extent of liability for costs, the sheriff was 
apparently interested, and it does not appear that his usees, 
for whose benefit the suit was instituted, deposited the costs 
with the Clerk, or did any other act to relieve him from such 
liability; but in our view of this case, (as will hereafter 
appear,) his depositions were not at all material to the case. 

This evidence having been rejected, the plaintiff closed his 
case, and upon defendant's motion, the Court below awarded 
a non-suit, to which plaintiff's counsel excepted ; and this 
ruling of the Court we have now to review. It is not dis- 
tinctly stated on what grounds this non-suit was awarded ; 



MACON, JANUARY TERM, 1861. 249 

Janes vs. Horton et aL 

but from other parts of the record, we arrive at the conclu- 
sion that they were these : 

1st. That the bond was not a statutory, but a voluntary 
bond. 

2d. That plaintiff bad failed to prove a demand for the 
slaves levied upon, which was incumbent upon him by the 
common law. 

3d. That he failed to prove that the defendant did not 
deliver the slaves in terms of the law. 

It is by no means clear that this bond so nearly conforms 
to the statute as to make it a statutory bond. For the pur- 
poses of this case, adopting the defendant's hypothesis, we 
treat it as a voluntary bond. 

1. Then, by the rules of the common law, was it neces- 
sary that the plaintiff should have made, and should prove, 
a demand upon the obligor for the slaves, when, or after, the 
contingency had occurred which entitled the obligee to the 
delivery of them ? We think not. 

Mr. Parsons, in his valuable treatise on contracts, thus 
declares the well established rule on this subject: 

'' If the thing is to be done^ on the happening of an event, 
not to be caused by either party, he who is to have the 
benefit of the thing, should give notice to him who is to do 
it, that the event has occurred, unless from its ovm nature it 
^ust become known to that party when it happens ; or perhaps 
unless it is as likely to be known to the party who is to do 
the act required by the contract, as to him for whose benefit 
it is to be done. The rule in respect to demand rests upon 
the same principle as that in respect to notice. It may be 
requisite, either from the stipulations, or of the parties, or 
from the peculiar nature of the contract ; but where not so 
requisite, he who has promised to do anything, must perform 
his jiromise in the prescribed time, and the prescribed way ; 
or if none be prescribed, in a reasonable time, and a reason- 
able way, without being caUed uponP 2 Parsons on Con- 
tracts, 184. 

The event, upon the happening of which, the obligor in 
this case had contracted to deliver the slaves, was a certain 



260 SUPREME COURT OF GEORGIA. 

Janes vs, Horton et at, 

jadgmeut^ thereafler to be rendered in a cause to which the 
obligor was a party. 

The evidence shows that that judgment was rendered, and 
that it made necessary the delivery of the slaves to the plain- 
tiff. The obligor being the promovant in that litigation, the 
law presumes that the judgment, when rendered, was known 
to him. He was more likely to know it than the obligee, 
who had no interest in the litigation — was no party to it. 
Neither the stipulations of the contract nor its peculiar 
nature made a demand requisite. It was therefore incum- 
bent on the obligor to perform his contract, (i. e., to deliver 
the slaves,) within a reasonable time, " wUhoiU being caMed 
upon" A reasonable time would have been on or before the 
day on which the sheriff, in pursuance of the judgment upon 
the illegality, had advertised the property for sale, and this 
advertisement he was bound to notice. 

2. But it is said the plaintiff failed to prove that the 
defendant did not so deliver the slaves. We hold — 

That the entry on the^./a., dated 4th November, 1845, 
which was in evidence, is competent and sufficient proof 
prima facie of this fact. It was an official entry, which it 
was the duty of the officer to make at that time ; it speaks 
only to that which his duty required ; he had competent 
knowledge of the fact; there was no conceivable motive to 
make that entry falsely, more than any other; it was part of 
the res gestce of his official actings and doings in a matter 
confided to him by law ; his general interest in making the 
entry, to show that he has done his duty, does not affect the 
admissibility of the evidence, nor impair its effect. 1 Qrecn- 
leaf on Evidence, sec. 115, and notes , citiuff num^ous atUhori- 
ties. Why should not the sheriff's entry prove this fact as 
well as the levy, which was a part of plaintiff's case ? We 
think there was error in the judgment awarding a noosuit. 

Judgment reversed. 



MACON JANUARY TERM 1861. 251 



Hampton et cd,, vs. Brown. 



Hampton, et cU., vs. Bbowk, Governor, etc. 

If the recognizance recites the offense substantially for which the offender 
is arrested, it is not necessary to designate it by name. 

Scire faeiaSy on a forfeited recognizance, in Taylor Supe- 
rior Conrt. Decision made by Judge Worrill, at the Octo- 
ber Term, 1860. 

The only question in this case, arose upon the following 
state of facts, to-wit : 

At the April Term, 1859, of Taylor Superior Court, a bill 
of indictment was found and filed against Philip Hampton, 
charging him with being a "cheat and swindler," and further 
alleging, " that, on the 28th day of January, 1858, with 
intent to cheat and swindle one Bryan Ingram, did by false 
representations of his own respectability and mercantile cor- 
respondence and connections, obtain a credit, and get posses- 
sion of property, to the amount of $1,000 00, from the said 
Bryan Ingram, of the real and private property of the said 
Bryan Ingram, said property being lot of land No. 191, 
lying and being in the 14th district of Taylor county, Geor- 
gia, said land of the value of $1,000 00, whereby said Philip 
Hampton did then and there defraud, cheat and swindle the 
said Bryan Ingram, he, the said Philip Hampton, being then 
and there of no respectability, wealth, or mercantile corres- 
pondence or connections, and having no property." 

On the 17th day of June, 1859, the defendant, Philip 
Hampton, was arrested under a warrant for the offense 
charged in the indictment, and entered into a recognizance 
with Elijah H. Hicks and Henry Horton as his securities, 
"to appear at the Superior Court of said county of Taylor, 
on the first Monday of October, 1859, and to continue from 
day to day, and from term to term, then and there to answer 
to a bill of indictment for the offense of cheating and de- 
frauding." 

In the April Term, 1860, the defendant failing to appear, 
the recognizance w^as duly and regularly forfeited. 

On the 21st day of June, 1860, scire facias issued, a^d 



252 SUPREME COURT OF GEORGIA. 

Hampton et a2., vs. Brown. 

was duly served upon the said Hampton and his securities, 
to show cause why judgment should not be entered up against 
them for the amount of said bond with costs. 

In answer to the adre facias the defendants showed for 
cause: 

1. That the recognizance did not specify any crime, in 
charging Hampton with having committed the offense of 
oheaiing and defrauding. 

2. That the bill of indictment charged the defendant, 
Hampton, with the offense of being a cheat and swindler, 
and that there is, therefore^ a variance between the indict- 
ment and recognizance. 

The presiding Judge decided the showing insufficient, and 
passed an order for final judgment on the recognizance. 
This decision is the error alleged. 

James T. May, for plaintiff in error. 

Peabody, (Solicitor General,) for defendant in error. 

By the Court. — ^Lumpkin, J,, delivering the opinion. 

The defendant was prosecuted under the 9th section of the 
11th division of the Penal Code as a cheat and a swindler. 
(Cobb, 822.) He was arrested, and gave bond for his ap- 
pearance to answer for the offense of cheating and defraud- 
ing. Forfeiting his recognizance, a scire fadas was issued 
against him and his securities, to show cause why judgment 
should not be entered up against them for the amount of 
their bond. They showed for cause : 1. That the bond did 
not specify any crime. 2. That there was a variance between 
the indictment and the bond. The Court overruled both 
objections, and the defendant excepted, and this is the case 
before us. 

But any act, by which another is " defrauded and cheated,'' 
under that section, makes the offender a cheat and swindler, 
and* the offense is so charged in the indictment. The grand 
jury say, that " the said Philip Hampton did then and there 
defraudy cheat, and swindle," the said Bryan Ingram, etc. 



MACJON, JANUARY TERM, 1861. 253 

Pare vs, Mahone. 

using those terms indifierentlj, as they had a right to do 
Qoder the Code. 

We can not consider the variance material, and we hold 
that the recognizance recites the offense, if not by name, yet 
m sabstance, which is sufficient. 

Judgment affirmed. 



Pare vs. Mahone. 



1. A proceeding by a creditor to collect his debt by attachment, does not 
make the debt a statutory liability. 

2. The defendant, who was one of several makers to a promissory note, 
and who resided out of the State at the time the note was made, 
and has continued to reside oat of the State since that time, is not 
within the exception of the statute of limitation of 8th December, 
1806, the exception being, ^' when the defendant shall remove out of 
the jurisdictional limits of this State, that then such persons (entitled 
to bring such action) shall be at liberty to bring the same action, so as 
they take the same within such time as before is limited, after the re- 
turn of the defendant into the same/' 

Complaint, in Taylor Superior Court. Tried before Judge 
WoRRiLi., at the October Term, 1860. 

The record in this case presents but one question, which 
arose out of the following state of facts, to-wit: 

On the 19th day of May, 1838, Edward F. Mahone, 
Henry D. Evans, and John Evans, executed a promissory 
note, of which the following is a copy, to-wit : 

"$885 00. By the 25th day of December next, I promise 
to pay Levi Turner, or bearer, eight hundred and eighty-five 
dollars, for value received, this 19th May, 1838. 

•'EDWARD F. MAHONE, 
"H.D.EVANS, 

"JOHN EVANS.'* 

• 

On the 8th day of November, 1842, an action was insti- 
toted on said note, in Talbot Inferior Court, in favor of Levi 



254 SUPREME COURT OF GEORGIA. 

Pare vs. Mahone. 

Turner, the payee, against Henry D. Evans and Charles 
Evans, as executors of John Evans, deceased, in which final 
judgment was rendered in favor of the plaintiff, for the prin- 
cipal and interest due on the note, with costs of suit, at the 
September Terra, 1843. 

On the 14th day of September, 1868, an attachment predi- 
cated on said note, was sued out, in favor of Jacob Pare, 
against Edward F. Mahone, which attachment was made 
returnable to the October Term of the Superior Court of 
said county of Taylor, and levied on lot of land No. 242, in 
the 13th district of originally Muscogee, then Taylor county. 

At the term of the Court to which the attachment was 
made returnable, the plaintiff filed a declaration on said note, 
and Mahone pleaded the statute of limitations. 

On the trial of the case, in addition to the foregoing facts, 
it appeared in evidence, that Edward F. Mahone, at the time 
of making said note, resided in Macon county, State of Ala- 
bama, and had resided there ever since that time, although 
said note was made in the State of Georgia. 

Upon this testimony, the presiding Judge charged the 
jury, "that the plaintiff's right of action was barred by the 
statute of limitations, and that they should find for the de- 
fendant." 

The jury found for the defendant, and a reversal of the 
judgment is asked, on the ground of alleged error in the 
charge of the Court. 

James T. May, for plaintiff in error. 

Grice & Wallace, for defendant in error. 

By the Court — LYon, J., delivering the opinion. 

It is claimed by counsel for the plaintiff in error, that the 
statute of limitations of this State does not bar this suit for 
two reasons: 

1, That this is a statutory liability. 

2. That, as the defendant was not a citizen of the State 
when the debt was created, and has constantly resided oat of 



MAOON, JANUAEY TERM, 1861. 255 

Parei7«. Mahone. 

the State since that time^ the case is an exception to the 
statute^ and within this provision of the 2d section of the 
Act of 8th of December, 1806: "wAen the defendant shall 
remove out of the jurisdictional limits of this State, that then 
such persons [entitled to bring such action] shall be at liberty 
to bring the same action, so they take the same within such 
time as before is limited, after the return of the defendant 
into the same." 

There is nothing in the first position. The debt, which is 

the foundation of this proceeding, is not a statutory liability, 

but a simple contract debt. Counsel in the argument seemed 

to be impressed with the opinion, that because his proceeding 

to enforce the debt was by attachment, being a remedy 

specially created by statute, that, therefore, the debt was a 

statutory liability. In this we differ from the counsel. The 

remedy for the enforcement of a debt, whether given by 

statute or existing at common law, does not alter, change, or 

affect the character of the liability ; that remains as it was 

originally created, no matter what form of proceeding the 

creditor adopts to enforce its collection. A statutory liability 

is one that depends for its existence and creation upon the 

special enactment of a statute, and not upon the contract of 

the parties. 

3. Then, is the case within the exception of the Act of 
1806 — Cobb, 565— as claimed by counsel in his second posi- 
tion? We hold that it is not. The words of the exception 
are, " When the defendant shall remove out of the jurisdictional 
Umits of this StaJteJ^ Clearly, the case is not within the 
words of the act, for the defendant has not removed out of 
tbe State. He has never been a citizen of the State since 
the creation of the debt ; was not at that time : was then, 
and has been ever since, a resident of the State of Alabama. 
To fall within the words of the act, the defendant must have 
been a citizen of the State at the time of the accrual of the 
debt, or after and subsequently to have removed out. Neither 
is the case within the spirit of the exception, nor is there 
any reason why the exception should be extended by con- 
struction beyond the plain import of the words of the act : 



256 SUPREME COURT OF GEORGIA 

• 

Paretj. Mahone. 

for at the time of the contract, as the defendant then resided 
in the State of Alabama, it could not have been at that time 
within the contemplation of the parties that the contract 
should be enforced as against the defendant by the Courts 
of Georgia. But if the case was within the reason and spirit 
of the act, the Courts have no power, by judicial construc- 
tion, to extend the exception beyond the plain import of the 
words of the statute. Statutes of limitation must be con- 
strued strictly, and a construction derived from a considera- 
tion of the reason and spirit of the statute should never be 
resorted to but when the expi:essions are so ambiguous as to 
render such mode of interpretation unavoidable. — Aug. en 
Idm., 20, 22. It is not for the Court to extend the law to 
all cases coming within the reason of it, so long as these are 
not within the letter. General words of a statute, it is con- 
sidered, must receive a general construction, and unless there 
can be found in the statute itself some ground for restraining 
it, it cannot be restrained by arbitrary addition or entrench- 
ment. Ang. on Xm., 205; Sacia va, DeGraff.y 1 Cbn., 356. 
Counsel for plaintiff in error referred to, and relied on 
various adjudications of different State Courts, on exceptions 
in their several statutes of limitation, which he claims to be 
in point, and authorities in support of his position. We can 
not agree with the counsel. The exceptions in the several 
statutes on which these decisions were predicated^ in every 
instance were altogether different, and not at all analogous to 
the words of our act Take, for example, that of Alabama, 
''If any person, against whom there is or shall be any cause 
of action, as is specified in the preceding section of this act, 
is or are, or shall be, out of this State at the time of the caose 
of action accruing.'' In the Mississippi Act, the words of the 
exception are exactly the same as that of the Alabama Act. 
In Massachusetts, the words are, '' If, at the time when any 
cause of action mentioned in this chapter shall accrue against 
any one, he shall he out of the State" In Missouri, " If, at 
the time when any cause of action specified in this article 
accrues against any person, he shall be out of the StateJ' Txk 
Vermont, '' If, at the time when any cause of action of & 



MACON, JANUARY TERM, 1861. 257 

Bell vs, McGrady. 



[personal natare, mentioned in this chapter, shall accrue 
i^^inst any person, he shaU be out of the StateJ' In New 
Hampshire, '^If the defendant, at the time the cause of 
letion accrued or afterwards, was absent from, or residing 
)ut of, the State.'^ And so was the exception, substantially, 
in every State from which a decision was referred to. The 
construction put by the Courts of those States upon their 
Acts, can not aid this Court in the interpretation of the act 
before us, for there is no similarity in the words and provis- 
ions of the exceptions. 
Jndgment affirmed. 



Bell vs. McGjrady. 

I. G. k H. assign their effects to G , to pay their debts. B , a 

creditor of G. & H., may, by bill, enforce this agreement for his 
benefit. 

'.'. An objection to a bill, on the gronnd that the complainant has an 
adequate remedy at law, comes too late, at the hearing when the 
bill is set down fon trial. It must be taken advantage of the first 
opportanity. 

In Equity, in Webster Superior Court. Motion to dis- 
miss a bill, decided by Judge Pkbkins, at the September 
Term, 1860. 

The record in this case discloses the following state of 
fact5, to-wit : 

On the 6th day of August, 1858, James M. Bell exhibited 
a bill in Equity, against William J. Gardner, James R. 
Kendrick, and Silas M . McGrady, in which he alleges : That 
the said Gardner and Kendrick were partners in the livery- 
^ble business in the town of Preston, and that all their 
visible or tangible property consisted of the horses, buggies, 
«tc., connected with said business ; that on the 14th day of 
April, 1857, one Meredith Statham sold to the said firm of 
XJLXU — 17. 



258 SUPREME COURT OF GEORGIA. 

Bell V3, McGradj. 

Gardner & Kendrick a horse and buggy, for which they 
gave him their promissorj note for $160 00, dated the said 
day of sale, due the 25th of December, 1857, and payable to 
the said Statham or bearer; that said note was duly trans- 
ferred to the complainant for value and in a fair course of 
trade, whereby he became the lawful owner and bearer of 
the note, and entitled to the sum of money due thereon; 
that on the 1st day of January, 1868, the said Silas McGradj 
purchased from the said Gardner & Kendrick the said livery- 
stables, horses, buggies, books of account^ and all other 
appurtenances of said business, including the horse and 
buggy so sold by Statham as aforesaid ; that the prime con- 
sideration of such purchase was an agreement in writing, 
entered into at the time, in and by which the said Silas M. 
McGrady bound himself to pay all the debts and liabilities 
of the said firm of Gardner & Kendrick ; that, pursuant to 
the terms of said written agreement, the said Silas M. 
McGrady did pay to the complainant on said note the such 
of $19 50, on the 14th of January, 1858; that said written 
agreement of said McGrady, to pay off the liabilities of said 
Gardner & Kendrick, is inaccessible to the complainant, and, 
as he believes, has been destroyed by said McGrady, or 
through some agency of his; that the firm of Gardner & 
Kendrick, and the individuals who composed it, are all insol- 
vent, and that Kendrick has absconded from the country, 
and McGrady utterly refuses to pay the complainant the 
balance due on said note, notwithstanding he has collected 
largely more than sufficient for that purpose from the books 
of the said Gardner & Kendrick. 

The bill prays a discovery as to the facts charged, and 
that, under the written agreement aforesaid, McGrady be 
compelled to pay the complainant the principal and interest 
due on the note given to Stratham. 

At the September Term of Webster Superior Court, said 
bill was called for trial, and a special jury was impanne^ed 
to try it, when counsel for the defendant moved to dismiss^ 
the bill for want of equity, and because complainant had an 
adequate remedy at law. The presiding Judge sustaiaed the 



MACON, JANUARY TERM, 1861. 259 

Bell vs. McGrady. 

motion, and dismissed the bill on the grounds taken in the 
motion. 
JThis decision is the enx>r complained of in this case. 

WniBEBLY & Blanfobb, foT plaintiff in error. 

McCay & Hawkins^ for defendant in error. 

By the Covai. — ^LuMPKiN, J., delivering the opinion. 

We think the bill in this case well brought. McGrady, 
by virtue of his agreement with Gardner & Kendrick, 
became trustee to paj their debts. The effects of Gardner 
& Kendrick were assigned to McGradj to discharge their 
liabilities, and it was proper for this creditor to go into 
equity to enforce this agreement in behalf of himself and 
others. 

But, admitting that the remedy at law was complete, the 
bill ought not to have been dismissed on that account. In 
May, d al,j vs. Goodwin, (27 Ga. Rep., 352,) this Court held 
that an injunction to a bill on the ground that the complain- 
ant bad an adequate remedy at law, comes too late at the 
hearing. It should be taken advantage of the first oppor- 
tanity, otherwise it will be considered as waived. 

This decision must stand as 'a reason for reversing the 
judgment of the Court below. 
Judgment reversed. 



260 SUPREME COURT OF GEORGIA. 

i „_^ 

Mansfield and Ives vs, Tarpin k Clements. 

Mansfield and Ives, adm'rs., vs. Tubpin & Clements. 

Under the Act of 23d Febraary, 1867, giving to foreign ezecQton, 
administrators and guardian s, the right to sue in the Conrts of Georgia^ 
if a plaintiff suing in such character goes to trial, and closes his case 
without having shown that he had complied with the proviso to the 
act, requiring that he file, on or before the judgment term of the 
Court, an exemplification of his letters, he shou(d, on motion, be 
non- suited. It is not necessary for the defendant to plead his failure 
to do so in bar of the action. 

Assumpsit, in Sumter Superior Court. Tried before 
Judge Allen, at the October Term, 1860. 

This was an action brought by the plaintiffs, John Mans- 
field and Frederick Ives, as administrators of Henry Ives, 
deceased, against Turpin & Clements, to recover the amount 
of an open account. 

On the trial of the case, the plaintiffs introduced Turpio, 
one of the defendants, as a witness, who testified : " That he . 
received the bill of goods charged and sued on, and that they 
were worth the prices charged ; that he saw on the firm books 
a copy note for the amount, and across it, in his own hand- 
writing, written "paid;*' that he had corresponded with the 
intestate of the plaintiffs, and that said intestate resided at 
the time of his death in the State of Connecticut, and that 
he believed the plaintiffs did not reside in the State of 
Georgia." 

Upon this testimony, the {)residing Judge awarded a non- 
suit against the plaintiffs, on the ground that a foreign 
administrator could not bring or maintain a suit in this 
State, without filing a copy of his letters of administration, 
and introducing them on the trial. 

This decision is the alleged error in the record. 

Hawkins, for plaintiffs in error. 

B. Hill (representing McCoy) for defendants in error. 



MACON, JANUARY TERM, 1861. 261 

Mansfield and Ives vs. Turpin & Clements. 

By the Court. — Jenkins, J., delivering the opinion. 

We hold that the judgment of the Court below, award- 
ing a Don-sait in this case, was correct. 

Anterior to the Act of the 23d July, 1850, foreign execu- 
tors and administrators bad no status in the Courts of Geor- 
gia — could not institute suits to recover choses in action, 
or to enforce any right of their testators or intestates. That 
act removed the disability — conferred the right. But the 
L^islature, (as they had a perfect right to do,) imposed a 
condition on the privilege in the form of a proviso to the 
act, in these words : " Provided, said legal representatives 
shall, on or before the judgment term of the Court to which 
such suit or suits are brought, file in said Court a legally 
authenticated exemplification of his, her, or their letters of 
administration, to be nsed on the trial.'^ 

This is not required to be done at the filing of the declara- 
tion, nor at the appearance term. The defendant is required 
to plead, or answer, at the appearance term, and therefore is 
not required to plead the plaintiff's failure to comply with 
the proviso of the act. 

If the plaintiff go to trial, at the judgment term, and 
close his case without showing that he has complied with 
the proviso, he does not bring himself within the operation 
of the act, — does not show that he is entitled to a judgment 
of the Court, and is therefore subject to a non-suit. 

Judgment affirmed. 



262 SUPREME COUET OF GEORGIA. 

Heirs of Lucas vs. Tarrer. 



Heibs of Lucas vs. Tabveb. 

Under the Act of 1847, compelling discoveries at common law, and tbe 
statutes amendatory thereof, when interrogatories are filed for the 
opposite party, and they fail to answer, the Court may attach the party 
who is in default, continue the case, or non-suit the plaintiff, or strike 
out the defendant's plea, according to the circumstances. Edd: 

That it is discretionary with the Court to continue the case generally, 
or charge it to the party in default ; and that the discretion of the 
Court in this, as well as all other cases, will be controlled where?et 
it b flagrantly abused. 

Ejectment, from Baker Superior Court. Decision made by 
Judge Allen, at the November Term, 1860. 

The question in this case arises out of the following state 
of facts, to-wit : 

An action of ejectment was pending in Baker Superior 
Court, for the recovery of lot of laAd No. 160, in the 8th 
district of said county, in favor of John Doe, ex dem., Tabi- 
tha Watson ; George Stone, in right of his wife, Martha V. 
Stone ; Joseph Ashurst, in right of his wife, Eliza P. Ash- 
urst; Thos. W. Mason, in right of his wife, Mary J. Mason; 
David Walker, in right of his wife, Ann K. D. Walker ; 
Albert G. Goodall ; James P. Goodall ; Otis Dyer, in right 
of his wife, Mary Ann Dyer; William F. Hoduitt, in right 
of his wife, Caroline Hoduitt ; Thomas Gott, in right of his 
wife, Virginia Gott, formerly Virginia Goodall ; John B. 
Wardlaw, in right of his wife, Martha Wardlaw, formerly 
Martha Goodall ; and Mrs. Seaborn Ann Pollock, formerly 
Seaborn Ann Goodall, heirs at law of Kcziah Lucas, de- 
ceased, against Richard Roe,, casual ejector, and Henry A. 
Tarver, tenant in possession. 

Interrogatories had been filed by the defendant, requiring 
the plaintiffs to answer under the Act of 1847, and which 
had been served upon counsel for the plaintiff barely sixty 
days before the beginning of the Term. In addition to this, 
the plaintiffs were scattered over the States of Georgia, Ala- 
bama, Mississippi, Louisiana and Texas, and one of them 
was traveling in Europe at the time the interrogatories were 



MACON, JANUARY TERM, 1861. 263 

Heirs of Lucas vs, Tarver. 

served, and at the time they were required to be answered. 
There had been no want of diligence in the effort to have the 
interrogatories answered. Under this state of facts^ which 
were admitted by coansel for the defendant, the Court charged 
the continuance of the case to the plaintiffs, holding that 
the continuance^ under the statute, must' be charged to the 
plaintiff, and that the Court had no discretion in the prem- 
ises. 

This decision was excepted to by counsel for the plaintiffs, 
and is the error assigned in the record. 

Irvin & Butler, for plaintiffs in error. 

Slattghter & Ely, for defendant in error. 

B^ the Court — Lumpkin, J., delivering the opinion. 

This was an action of ejectment brought by the heirs at 
law of Keziah Lucas, against Henry A. Tarver, to recover 
lot Xo. 160, in the 8th district of Baker county. Interrog- 
atories were filed by the defendant against plaintiffs, under 
the Statute of 1847, and the Acts amendatory thereof, to 
compel discoveries at common law : and the same not having 
been answered and returned, the defendant moved to charge 
the plaintiffs with a continuance of the cause, notwithstand- 
ing the interrogatori.es had been filed barely sixty days be- 
fore the Court sat, and although it was admitted that the 
plaintiffs were scattered over five States — Georgia, Alabama, 
Te^as, Mississippi and Louisiana, and one of them was at 
that time traveling in Europe, and there was no lack of dili- 
gence to procure the testimony. 

The Court held that it had* no discretion under the law, 
and accordingly continued the case at the instance of the 
plaintiffs^ and it is this decision that is sought to be reversed. 

We are clear that the Court is clothed with plenary dis- 
cretion; still, if it had been exercised properly in this case, 
we should not have disturbed the judgment; but, well satis- 
fied as we are that no laches was attributable to the plaintiffs, 
and that it was error to have charged them with one of the 



264 SUPREME COURT OF GEORGIA. 

Walker vs. Watson. 

continuances allowed them by law, under the facts, which 
were not contradicted, we are constrained to reverse the judg- 
ment. 

Judgment reversed. 



Walker vs. Watson. 



Conveyance of a slave to J. R. W., ** for the use of W. M. W.," (a minor 
and an orphan, whose guardian was C. W.,) with a limitation over, ^^ic 
the event of W. M. W. dying without child or children.*' ffdd : That 
the guardian, G. W., was entitled to the possession of the slave as 
against J. R. W., the trustee, the trust being executed, and the posses- 
sion following the use. 

Trover,, in Mitchell Superior Court. Tried before Judge 
Hansell, at the November Term, 1860. 

The question presented for adjudication in this case arises 
out of the following state of facts, to-wit : 

On the 11th day of May, 1858, Jacob Watson executed a 
deed, which was duly attested and recorded, of which the 
following is a copy : 

" Georgia, Baker County. 

Whereas, I loaned to my son, Willis M. Watson, in his 
life-time, a negro girl named Hannah, then eight or nine 
years old, now about sixteen or seventeen years old, and never 
having reclaimed the possession of said negro girl, but allow- 
ing her to remain in my said son's possession until his death, 
and since, in the possession of his widow, for the benefit of 
her and her child, ray grandson ; now, in consideration of the 
love and regard which I have for my grandson, Willis M. 
Watson, only child and son, of my son, Willis M, Watson, 
deceased, I have given and granted, and do hereby give and 
grant, unto my son, James R. Watson, for the use of my 
grandson, Willis M. Watson, the said negro girl Hannah and 
her increase; and in the event of my grandson dying without 
child or children, the said negro girl Hannah and her increase 



MACON, JANUARY TERM, 1861. 265 

Walker vs. Watson. 

to go to, and belong to, my children living, and the repre- 
sentatives of such of my children as may be dead ; bat if the 
said Willis M. Watson dies leaving child or children, then 
to his heirs forever/' 

Clement W. Walker was duly appointed the guardian of 
the person and property of the said Willis M. Watson, who 
was a minor, and as such gaardian, had possession of said 
negro girl mentioned in the deed . 

James B. Watson demanded the possession of the negro 
girl from Walker, who refused to give her up, and Watson 
brought this action to recover said negro and her hire. 

The presiding Judge decided, " That the deed vested the 
legal title to the negro in dispute in James R. Watson, the 
trustee, and that he was entitled to recover the negro and 
her hire, as against Walker, the guardian." 

A verdict and judgment were rendered in accordance with 
the decision, and the plaintiff in error seeks by his writ to 
reverse the judgment, on the ground that the decision of the 
Judge was error. 

Slaughter & Ely, for plaintiff in error. 

Vason & Davis, contra. 

By the Court — Jenkins, J., delivering the opinion. 

The property in dispute was conveyed by deed to the plain- 
tiff, in the Court below, " for the use of Willis M. Watson," 
a minor and an orphan, with a limitation over, '^ in the 
event of the said Willis M. dying without child or children." 
The plaintiff in error, (defendant below,) is the guardian of 
the usee, and in that character held the property, and upon 
that title alone, defended the action. 

The Court below held '^ that the deed vested the legal title 
to the negro in James R Watson, the trustee, and that he 
was entitled to recover the negro and her hire, as against 
Walker, the guardian." 

The case of Bowman, executor and trustee, vs. Long, 26 
Ga. B., 143, differs from this case only in two particulars : 



266 SUPREME CX3URT OP GEORGIA. 

Skelton et al.j vs. The Ordinary. 

1st. In that case, the property was given by will. 2d. There, 
the event upon which the limitation over depended, was the 
death of the usee under the age of twenty-one years. 

This difference does not affect the principle involved. 
Both cases turn upon the questions, whether or not the trust 
is executed, and if so, whether or not the law transfers the 
use into possession, or rather, makes the possession follow 
the use. 

In Bowman vs. Long, this Court held the affirmative on 
both questions, and maintained the possessory right of the 
guardian, against the party claiming as trustee. Following 
that decision, we hold that the Court below erred, and reverse 
the judgment.' 

Judgment reversed. 



. Skelton, et al.j vs. The Ordinary, etc. 

1. An order of the Conrt of Ordinary, authorizing a guardian to invest 
the money of his wards in land, if procured to be passed by the 
guardian fraudulently, is a mere nullity, and may be so treated by 
third persons in any Court, whenever attempted to be used as a valid 
judgment. 

2. When a guardian, authorized to invest the money of his wards in 
land, gives up to one, from whom he had previously purchased, a 
deed of land, to be cancelled, and takes a second deed from suck 
person to himself, as guardian, such second deed is not necessarily 
void, but, under some circumstances, might be held good. 

8. But, when the transaction is ifot raUfied by the wards, nor its enforce- 
ment asked by them, and the transaction is otherwise objectionable, 
the deed is void, and may be so treated. 

4. When the guardian is authorized by the Ordinaty to invest the fanda 
of his wards in land, he is bound to make such investment in good 
faith for their benefit, and if he fails to do so, the order of the Ordi- 
nary will not protect him from liability for the funds. 

6. It is questionable whether the Ordinary has power to authorize & 
guardian to invest funds of the wards in land, when the wards own no 
slaves to put on and cultivate the land to be purchased. 



MACON, JANUARY TERM, 1861. 267 



SkeltOD etcU,, vs. The Ordinary. 



Action on a Guardian's Bond, in Webster Superior Court. 
Tried before Judge Perkins, at the September Term, 1860. 

This was an action brought by David G. Rogers, Ordinary 
of Webster county, for the use of Obed. C. McGrady, guar- 
dian of Edward McGrady, against William Skelton as prin- 
cipal, and John Y. Bighan^, and Sampson Bell, as executor 
of Eason B. Sweeny, deceased, as securities. 

The object of the suit was to recover a sum of money 
claimed to be due from Skelton, as former guardian of 
Edward McGrady, to the said Obed. C. McGrady, the 
present guardian, and for which Skelton and his securities, 
Bigham and Sweeny, were liable on the guardian's bond of 
Skelton. 

The testimony on the trial in the case, in the Court below, 
was as follows : 

The plaintiff read in evidence the bond given by Skelton, 
as guardian of Edward McGrady, and Sarah A. McGrady, 
which was dated the 3d of March, 1856, and signed by 
Skelton, as principal, and Bigham and Sweeny as securities. 

The plaintiff also proved by the admission of Skelton, 
that, as guardian of the plaintiff and his sister, he had on 
hand, belonging to them, the sum of $800 00, on the Ist 
day of July, 1857. 

Plaintiff then closed his case. 

Defendants then read, in evidence, an order of the Court 
of Ordinary of Webster county, passed at the June Term, 
1857, reciting : " that Skelton had in hands $800 00 in cash 
and available assets belonging to Edward and Sarah A. 
ilcGrady, orphans of William B. McGrady, deceased, and 
that said Skelton, as guardian of said minors, desired to lay 
oat, and invest said money in real estate for their use and 
benefit; and authorizing the said Skelton thus to invest the 
fund, taking the titles thereto to himself as guardian, in 
conformity with the statute approved 17th of February, 1854. 

The defendants also read in evidence a deed from Benja- 
uiin GriiBn, to the said William Skelton, guardian of Edward 
and Sarah A. McGrady, dated the 6th of July, 1857, recorded 



268 SUPREME COURT OF GEORGIA. 

Skelton et al., vs. The Ordinary. 

the 9th of March, 1858, and conveying lot of land No. 187, 
in the 25th district of originally Lee, then Webster county ; 
and proved by S. McGrady that the land was worth from 
$800 00 to $1,000 00. 

The plaintiff then proved in rebuttal, that the order, 
authorizing an investment of the funds by the guardian in 
land, was revoked and set aside by the same Court at the 
July Term, 1857, which was resisted by Skelton, and from 
which he appealed to the Superior Court, and on said 'appeal 
the judgment was affirmed. 

The plaintiff also proved, that Skelton had bought the 
land from Griffin on his own account and paid him for it in 
the early part of the year 1857, and was living on it; that 
he had spent the money of his wards, and, pursuant to the 
suggestion of Bell, one of the defendants, he procured Griffin 
to destroy the deed made by him to Skelton for the land, 
and make another deed to him as guardian ; that the land 
was sold at sheriff's sale, in September, 1858, under a^. /a. 
in favor of Jones and Richardson, founded on a judgment 
dated in 1858, and one in favor of G. W. Rankin, founded 
on a judgment dated in April, 1857, both judgments against 
said Skelton ; that said land was bought at said sale by one 
William P. Cato, who was then«in possession of the land. 

It was also proven, that on the day the second order of 
the Court of Ordinary was passed, rescinding the first order, 
Skelton had said deed from Griffin to him as guardian, and 
showed it to the Ordinary &s a reason why the order shonM 
not be rescinded. It was also proved, that the sale of the 
land was had under thefi.fa. in favor of Jones & Richard- 
son, and the entry of the sal^e of the land was made on the 
Ranking. /a. in order to dispose of the levy on it. 

The testimony being closed, the presiding Judge charged 
the jury as follows : 

"If the jury believe that the order of the Ordinary 
authorizing Skelton to invest $800 00 in land, was procared 
by fraud, then it might be attacked in any Court, even oollat- 
erally, and treated as null, and all acts of Skelton, done by 
virtue of it, are void. That if Griffin had soldSkeltou th^ 



MACON, JANUARY TERM, 1861. 269 

Skelton et aLj va. The Ordinary. 

land, and made him a deed thereto^ before the order was 
pai:sed^ the title to the same was in Skelton, and no eancella- 
tioo or destruction of the first deed and making, of another 
deed to Skelton as guardian, could divest his individual title, 
and be an instrument for the benefit of the ward ; the last 
deed wa9 void, and conveyed no title to Skelton as guardian. 
That Skelton was bound in good faith to make the invest- 
ment in land, and in doipg so, if he failed to act in good 
faith for the promotion and advancement of the best interest 
of the children, then the plaintiff was entitled to recover the 
amoant shown to be in Skel ton's hands." 

The jury returned a verdict in favor of the plaintiff for 
^00 00, with interest from the 1st day of July, 1857. 

The writ of error in this case is prosecuted to reverse the 
judgment, on the ground that the presiding Judge erred in 
said charge to the jury, and also that the verdict is contrary 
to law. 

McCay & Hawkins, for plaintiff in error. 

a 

WiMBEKLY, for the defendant in error. 

By the Court. — Lyon, J., delivering the opinion. 

• 

William Skelton, one of the plaintiffs in error, as the 
guardian of Edward McGrady and Sarah Ann McGrady, 
tninois, had in his hands the sum of $800 00, belonging to 
!iis wards jointly, and having been removed from the gifard- 
ianship as to Edward McGrady, and Obed. C. McGrady 
jppoioted guardian for said Edward in place of Skelton, this 
action was brought by the Ordinary for the use of Obed. C. 
s.^ such guardian, for the recovery of that part of the sum in 
the hands of Skelton as former guardian that belonged to 
:iie ward Edward, against Skelton and his sureties on his 
fTuardian bond. The defendants to that action and plaintiffs 
Iiere, in defence thereto, put in evidence an order of the 
Coart of Ordinary of Webster county, passed at the June 
Term, 1857, authorizing Skelton as guardian to invest said 
-urn of ^00 00 then in his hands, as guardian of said mi- 



270 SUPREME COURT OF GEORGIA. 

Skelton et oZ., vs. The Ordinary. 

nors^ in land^ and to take the title thereto in his name as 
guardian, and a deed from one Benjamin Griffin to him as 
guaVdian, for lot of land No. 187, in 25th district, Webster 
county, dated 6th of July, 1867, with proof that the lot was 
worth $800 00 or $1,000 00. It appeared, from the proof, 
that the lot of land was not purchased by Skelton with the 
money of the wards under the order of the Ordinary, but 
had been long before the granting of the order purchased by 
Skelton from Griffin and paid for in negroes ; that he was in 
possession of the laud as his own from some time in 1856i 
held Griffin's deed to him individually for the land, which 
deed had been by him given up to Griffin and destroyed, 
and this deed to him as guardian made by Griffin in lien of it 

It also apppeared that at the time of this cancellation and 
reconveyance, there were judgments against him, Skelton, 
and that the land was subsequently sold under an execution 
against Skelton, obtained in 1858, and the proceeds applied, 
in part at least, to judgments older than the deed from Grif- 
fin to Skelton as guardian, at which sale one Cato was the 
purchaser, and who had gone into the possession of the land 
under such purchase. 

Upon these facts the Court charged the jury : 

1. That if they believed the orderof the Ordinary author- 
izing Skelton to invest $800 00 in land, was procured by 
fraud, then it might be attacked in any Court, even collater- 
ally, and treated as null, and all acts of Skelton done by 
virtue of it were void. 

2. That if Griffin had sold Skelton the land and made 
him a deed thereto before the order was passed, the title to 
the same was in Skelton, and no cancellation or destruction 
of the fii:st deed and making of another deed to Skelton as 
guardian, could divest his individual title and be an invest- 
ment for the benefit of the wards ; the last deed was void 
and conveyed no title to Skelton as guardian. 

3. That Skelton was bound in good faith to make the in- 
vestment in land, and if in doing this he failed to act in good 
fiiith for the promotion and advancement of the best interest 



MACON, JANUARY TERM, 1861. 271 

Skelton et al,, vs. The Ordinary. 

of the children, then the children were entitled to recover 
the amount shown to be in Skelton's hands. 
To these several charges plaintiffs in error excepted. * 
Upon the first proposition stated in the charge, we agree 
Trith the Court below ; that is, if the order authorizing the 
investment was procured by fraud, then it could be impeached 
collaterally, and all acts done by Skelton under it were void. 

1. All judgments, orders, decrees, or contracts, of whatever 
kind, obtained or procured by fraud, are mere nullities, and 
may be so treated by third persons whenever and wherever 
they are sought to be used as valid judgments, etc. 1 Green. 
Ev., sec. 284; Chitty on Contracts, 3; Moore vs. Bow- 
maker, 7; Taunt., 9; Termor's case; 2 Coke, 210; 1 Phil- 
lips^ Ev., 341. 

2. We are not so well satisfied of the soundness of the 
second proposition in the charge; tliat is, that the second 
deed made by Griffin for this lot to Skelton, as guardian, was 
void aud conveyed no title, notwithstanding the cancellation 
and destruction of the first deed; for, although it is very 
true, that this is a very irregular and imperfect mode of con- 
veyance of land, to say the least of it, still, if this had proved 
a profitable operation for the wards, the rights of third per- 
sons not intervening, we are not so sure but that a Court of 
Equity, on the application of the wards, would not give effect 
to the transaction for their benefit, treating the second deed 
of Griffin made with the assent and by the direction of Skel- 
ton as the deed of Skelton. 

3. But it is altogether unnecessary to discuss this question, 
as the wards have not ratified the transaction or asked for its 
enforcement, without which it is void and of no effect as to 
them; and in that sense there is no error in the charge, and 
certainly none in any sense, under the facts of this case, that 
prejudices the plaintiffs in error. 

4. To the third position assumed by the charge, we give 
onr unqualified approbation as the law of the case ; that is^ 
" that Skelton was bound to make the investment in land in 
good faith,, and if, in making the investment, even with the 
sanction of the Ordinary, he failed to act in goOvi faith for 



272 SUPREME COURT OF GEORGIA. 

Skelton et aLy vs. The Ordinary. 

the promotion and advancement of the best interest of the 
children, then the plaintifi8 were entitled to recover." 

The facts show that Skelton did not invest the money of 
his wards in this land, but that he, under color of this order, 
substituted the lot, or intended to do so, bj this clandestine 
arrangement between himself and Griffin, which belonged to 
himself, for the money of his wards that he had previously 
applied to his own private use. And this was a complete 
reply to his entire defense. 

6. It is very quest'onable whether this order of the Ordi- 
nary authorizing the investment, could have protected the 
guardian under any circumstances, however fair or in good 
faith he may have acted ; for the Act of 17th February, 
1854, under which the Ordinary acted, gives to the Ordinary 
no such power. That act authorizes the guardian, with the 
approval of the Ordinary, to invest surplus money of the 
wards in slaves — not land. Pam. Act of 1853-64, page 35. 
Neither can such power be implied from the Act of 19th of 
December, 1829. Cobb Dig. 327. That Act was intended 
to authorize guardians, under an order of the Ordinary, to 
keep the slaves of minors together, and have them employed 
in such agricultural or other operations as the guardian might 
deem manifestly expedient, and when the minor bad no land 
for that purpose, the guardian is authorized by that act, 
with the approval of the Ordinary, to invest disposable funds 
in the purchase of such reasonable portion of land as may be 
necessary for the purposes of the act. When the minor has 
no slaves to keep together or employ in the cultivation of 
the land, as appears to be the fact in this case, there can not 
be the slightest pretext for the investment of money in land. 
However, as it is not necessary in the present case, we will 
not say how far such an order, under those circumstances, 
would or would not protect a guardian in the investment of 
his wards' funds in land, when made in good faith. We only 
say that that is questionable. 

Judgment affirmed. 



O A.SES 



ARGUED AND DETERMINED 



IN THE 



AT ATLANTA, 



IMAROH TERM, 1861. 



Present— JOSEPH H. LUMPKIN, > 

RICHARD F. LYON, ^Judges. 
CHARLES J. JENKINS, j 



CoKSTANTiNE WooD, plaintiff in error, vs, Coosa and 
Chattooga River Railroad Company, defendant in 
error. 

1. The book of minutes or original entries kept and made by Commis- 
sioners appointed by the Legislature for the organization of a corpora- 
tion, is admissible as evidence in a suit against a subscriber for stock 
in such company. 

2. The charter of the Coosa and Chattooga River Railroad Company 
provides that '* no subscription (for stock in such company) shall be 
received and allowed, unless there shall be paid in to the Commission- 
ers, at the time of such subscription, the sum of five dollars on each 
share subscribed.'' In a suit by the corporation against one of the 
sabscribers for stock, for installments on his subscription, who had not 
paid in the five dollars a share at the time of subscribing : Heldj That 
such subscription was void, and could not be enforced, although the 
subscriber had promised to pay the installments as called for— had 

XXXTT — 18. 



274 SUPREME COURT OF GEORGIA. 

Wood vs. Coosa and Chattooga Railroad Company. 

attended and voted as a stockholder in meetings of the stockholders in 
said company. 
8. A sabscriber for stock in a corporation with an unconditional charter, 
will not be permitted, in a suit against him by the corporation for the 
recovery of installments on his stock subscription, to inquire into, and 
contest, the validity of the charter, or the right of the corporation to its 
use, although he may, to the legality and validity of his individual sob- 
subscription. 

Complaint in Walker Superior Court. Tried before Judge 
Walker, at the February Term, 1861. 

The Coosa and Chattooga River Railroad Company 
brought their action in Walker Superior Court, against 
Constantine Wood, to recover the sum of $75 00, the in- 
stallments due on five shares of stock in said company^ 
subscribed by sai^Wood. 

Defendant pleaded the general issue, and, in addition 
thereto, that the company had not complied with their char- 
ter; that he subscribed his stock previous to the time of 
organization of said company, and that a large portion of its 
stock has since been illegally transferred to another charter, 
without the consent of the stockholders. 

The case was tried at the February Term, 1861. Plaintiff 
read to the jury, from a small book, the following paper: 

Georgia — ^Walkeb County : 

We, the undersigned subscribers, agree to pay to the Com- 
missioners of the Coosa and Chattooga River Railroad Com- 
pany the number of shares of stock annexed to our names, at 
one hundred dollars per share, when said company shall be 
organized, in such installments as may be called for by the 
directors. Sept. 5, 1856. 

CONSTANTINE WOOD, 
JAS. M. EASTERLING, 
R. M. POWELL. 

Plaintiff then introduced Thomab E. Patton, to whose 
competency defendant objected, because it appeared from the 
preliminary examination of the witness that he was a stock- 
holder in the company. The objection was overruled, the 



ATLANTA, MAECH TERM, 1861. 275 

Wood tfi. Coosa and Chattooga Railroad Company. 

Court holding the witness competent for the purpose for 
which he was offered^ and he testified that a certain book 
shewn to him, was kept hy the commissioners appointed 
under the act of the Legislature organizing the company, for 
the purpose of recording their proceedings as such commis- 
sioners. 

Plaintiff then introduced in evidence the following extracts 
from the book to which Patton's testimony relates, to-wit : 

LaFayette, Ga., 3d Nov., 1862. 

Two of the Commissioners for Ringgold, B. A. Eamsay 
and M. Dickson, met with the Commissioners of La Fayette, 
and elected James Hoge in place of R. N. Acock, resigned, 
and appointed the first Monday in December next as a gen- 
eral meeting. 

• THOS. E. PATTON, Sec'ry pro tem. 

LaFayettb, Ga., Nov. 7, 1853. 

At a meeting of the Commissioners for La Fayette this 
day, Spencer Marsh resigned his office as commissioner, and 
Edwin Dyer was appointed to fill the vacancy occasioned by 
his resignation. 

JAMES HOGE, Sec^ry pro tem. 

State op Georgia — Walker County : 

We, whose names are hereunto subscribed, agree to pay to 
the Commissioners of the Coosa and Chattooga River Rail- 
road Company the number of shares annexed to our names, 
at one hundred dollars each share, this 15th Oct., 1856. 

NO. SHARES. 

Jama Hoge, 182 

A-W.T , 182 

A-Shaer, 182 

John Caldwell, 182 

Dan'l Major, 182 

John Gray, per Edwin Dyer, Ag't, 182 

EUGofse', 182 

A,B. Ctilbcrson, 182 



276 SUPREME COURT OF GEORGIA. 

Wood vs. Coosa and Chattooga Railroad Company. 

Geoegia — Walkee County : 

We, the undersigned, Commissioners of the Coosa and 
Chattooga River Kailroad Company, do hereby certify that 
we have proceeded according to the provisions of said char- 
ter, and have received the above subscriptions of stock from 
those whose names appear above, with the number of shares 
to their names annexed, each share representing one hundred 
dollars. Given under our hands and official signature, this 
15th October, 1866. 

T. E. PATTON, Com'r, 
JAMES HOGE, Com'r, 
EDWIN DYER, ComV. 

Geoegia — Chattooga County : 

We, whose names are hereto subscribed, lagree to pay to 
the Commissioners of the Coosa and Chattooga Biver Rail- 
road the number shares annexed to our names, at one hun- 
dred dollars each share, this 16th October, 1856. 

NAMES. NO. SHAEES. 

Edwin Dyer, 182 18,200 00 

J. E. Wardlaw, 182 18,200 00 

I. R. Gamble, 182 18,200 00 

546 
Subscribed to Walker Commissioners. ...1,456 

2,002 

According to the provisions of said charter, and have re- 
ceived the above subscription of 546 shares, at one hundred 
dollars each, making, with the subscription received by the 
Commissioners of Walker county, two thousand and two 
shares, it being the requisite amount of said charter for or- 
ganization. 

A. P. ALLGOOD, Com'r, 
CHARLES PRICE, Com'r, 
BENJAMIN BRANNON, ComV. 
LaFayette, 18th November, 1856. 



ATLANTA, MARCH TERM, 1861. 277 

Wood vs. Coosa and Chattooga Railroad Company. 



According to previous notice published in the Southern^*, 
a newspaper published in the town of Rome, Georgia, and 
also in the Courier, in the same place, in terms of the char- 
ter, the stockholders of the Coosa and Chattooga River Rail- 
road Company met for the purpose of organizing said com- 
pany, and it appearing that the requisitions of the charter 
have been complied with in the subscription of stock, and 
tjiat the stock was represented, we proceeded to hold an elec- 
tion for the first board of directors of said company, and 
upon counting out the votes, the following persons were elec- 
ted: Edwin Dyer, |John D. Gray, Augustus B. Culberson, 
Lewis R. Gamble, James C. Wardlaw, Daniel Major, James 
H(^e. Given under our hands, etc. 

EDWIN DYER, Com'r, 
JAMES HOGE, Com'r, 
T. E. PATTON, ComV. 

Resolved, That the treasurer collect an installment of five 
per cent, upon the stock of our railroad company, and that 
the secretary of the board proceed to advertise for the pay- 
ment of the same, in terms of the charter. 

Hesolved, That we call for an installment of ten per cent., 
to be due and payable on the first Wednesday in January 
next, and that the secretary publish notice of said call, in 
terms of the statute. 

To the introduction of all and every portion of these 
extracts, except the resolutions in regard to the instalments, 
the defendant objected; the objections were overruled and 
the evidence admitted. 

Plaintifi* then read in evidence certain newspapers, shew- 
ing publication of the notice of the calls for payment of 
stock. 

Green G. Gordon testified : That the plaintiff had an 
office and place of business in La Fayette ; had organized as a 
rompany and commenced work in constructing a railroad 
alK)ut August or September, 1868, and has continued to 
work, off and on, ever since ; have graded some seven or 



278 SUPREME COURT OF GEORGIA. 

Wood V8, Coosa and Chattooga Railroad Company. 

eight miles of the road, at an expense, he thinks, of $15,000 
or $20,000. 

A. H. MiRZE testified : That the day before the letarn 
day to the Court at which defendant was sued, he was going 
to defendant's house to serve the writ in this case, and met 
the defendant, who seemed to know what witness was going 
to see him for, and stated to witness tliat he was then going 
to town to pay up his stocks, or what was due on his stock, 
when witness told him if he would go and pay up like 
a man he would not charge any cost. 

The testimony was objected to by defendant, and the 
objection overruled. 

Plaintiff here closed. 

Defendant introduced as a witness, Thomas E. Patton, 
who. testified, on being shewn the book, that the paper 
therein signed by defendant, Esterling & Powell, was in the 
handwriting of Mr. Hoge, and that witness acted as com- 
missioner when said paper was executed or subscription 
made, and that no money was paid at that time or any other 
in his knowledge. 

Defendant closed, and the Court charged the jury as fol- 
lows: 

1. The defendant does not deny subscribing the agreement 
introduced in evidence, but insists that he has two grounds 
of defense : 1st. That there is no such corporation as the 
Coosa and Chatooga Eiver Railroad Company; and 2d. 
That if there be such a corporation he is not a member of it, 
not having done anything sufBicient to bind him to pay the 
stock. 

2. The burden of proof is on the plaintiff in these two 
issues. When the plaintiff introduced the act of incorpora- 
tion ; the record of the proceedings of the charter com- 
missioners certifying that all the requisites of the charter 
had been complied with; the election of officers by the 
stockholders; the books of the corporation containing an 
account of their proceedings, and proved a user of the 
privileges of the franchise; that the company had a place 
of business to carry out the objects for which they were 



ATLANTA, MARCH TERM, 1861. 279 



Wood V8, Coosa and Chattooga Railroad Company. 

incorporated, and that the business has been managed by 
directors so chosen, and that the corporation has gone on 
and expended considerable sums in forwarding the business 
of the corporation, a jonma facie case of the existence of the 
corporation according to the terms of the charter is shown, 
which, if not rebutted, would be sufficient to authorize you 
to find the issue in favor of the plaintiff. 

3. Something has been said about the recitals in the cer- 
tificates by the commissioners, and I have been requested to 
charge that they are no evidence in this case. This I can 
not do. All of the certificates are evidence, and when they 
say the requisites of the charter, preparatory to organization, 
were complied with, this is prima facie evidence of the facts 
so recited. 

4. Again, defendant insists that the corporation may have 
a legal existence, yet he is not a member of it ; because, at 
the time of subscribing, he did not pay $5 00 per share on 
the amount subscribed ; and notwithstanding he agreed to 
pay the five shares in such instalments as may be called for 
hy the directors, his failure to pay the five per cent, ren- 
dered hb undertaking nugatory, and relies upon the case of 
Napier et aL vs. Poe et oZ., 12 Ga. R., 170, as an authority 
in his favor, and if all of the opinion delivered in that case 
be law applicable to this case, defendant is protected by it. 

The plaintiff says that the portion of the opinion relied 
on 18 mere obiter and cannot be applied in this case under 
any proper view of the decision, because that was a contest 
between two sets of subscribers as to which should be 
allowed to subscribe for the stock under a bank charter, and 
that was the only question properly before the Court for 
adjudication. And again, as said by the Judge of the 
Supreme Court, in Mitchell vs. Rome Railroad Company, 17 
Ga. B., 591, there is not the same reason why the payment 
of some part of the stock in a railroad corporation should 
be made a condition precedent to the corporation going 
into operation that there is that the payment of some part of 
the stock of a banking corporation should be made a con- 
dition precedent to such a corporation going into operation ; 



280 SUPREME COURT OP GEORGIA. 

Wood vs. Coosa and Chattooga Railroad Company. 

for if a bank fails the public suffer — if a railroad company 
fails the stockholders suffer. 

Plaintiff further insists that the payment of the five per 
cent, was a provision in its favor^ and if the commissioners 
and the corporation saw proper to receive and allow the sub- 
scription without it^ and affirms and accepts it as valid, that 
defendant can not set up this indulgence to himself as a 
release, because there is nothing in its character which makes 
such subscription void. On this subject I charge you that it 
is no defence to this action that the commissioners waived 
the necessity of defendant's paying the five per cent, and 
that it does not lie in his mouth to say that his subscription, 
so received and allowed by the commissioners, is for that 
reason void. 

5. Here it is not denied that the plaintiff has gone for- 
ward in making the road, several miles have been graded at 
a considerable expense, various rights have accrued and 
obligations been incurred, and it is admitted that defendant, 
when sued, said he was going to La Fayette to pay the "calls" 
on his stock, and was thus recognizing both the existence of 
the corporation and his liability to pay this stock. These 
facts, not controverted by counsel, are proper to be taken 
into consideration in deciding whether the defendant is liable 
in this case or not. 

6. Counsel for defendant request the Court to charge the 
jury that although they may believe, under the instructions 
given them by the Court, that the subscription of defendant 
was a good one and constituted him a subscriber, yet, before 
the plaintiff had a right to call on the defendant to pay np 
any portion of his stock so subscribed by him, the plaintiff 
must prove to your satisfaction that two thousand shares of 
the capital stock of said company, including that subscribed 
by defendant, had been subscribed for, and ^5 00 on each 
share paid at the time of subscription. I can not give this 
charge. 

To the charge of the Court and the refusal to charge as 
requested, defendant excepted. 

The jury found a verdict in favor of the plaintiff, and defen* 



ATLANTA, MARCH TERM, 1861. 281 

Wood vs. Coosa and Chattooga Railroad Company. 



daut filed his bill of exceptions, complaining of the rulings of 
the Court in admitting the evidence objected to^ the charge 
of the Court as given^ and the refusal to charge as requested 
bj defendant 

Dougherty, Dabney, Farris, for plaintiff in error. 

Underwood, Wright, Culberson, for defendant in 
error. 

By (he Court, — Lyon, J., delivering the opinion. 

This was an action by the C<5osa and Chattooga River 
Railroad Company, in the Superior Court of Walker county, 
against Constantine Wood, for the sum of $75 00; two 
installments of five and ten per cent, on five shares in the 
capital stock of said company, for which said Wood is alleged 
to be a subscriber therein. 

On the trial, the plaintiff in said action offered in evi- 
dence the original book, kept by the commissioners appointed 
by the charter for organizing said company, for the purpose 
of entering and recording therein their proceedings as such 
commissioners, together with the acts, resolutions and pro- 
ceedings of said commissioners, as recorded therein ; said 
book having first been identified as the book of original 
entries, by the suppletory oath of Thomas Patton, one of the 
stockholders, (whose testimony for that purpose was objected 
to bj defendant, but waived in the argument before us.) The 
defendant objected to the entries therein as evidence against 
him. The Court overruled the objection, and that is the 
first ground of error complained of. 

1. We do not think the objection well taken. This was 
the book or minutes of the action of the commissioners, 
appointed in the charter for the organization of the com- 
pany. They were required to keep books of subscription, 
sum up and certify the amount of the same, to organize the 
company, and make a record of their proceedings in the elec- 
tion of the board of directors. These entries, put in evidence, 
are the acts done by said commissioners, in their official 



282 SUPREME COUHT OF GEORGIA. 

Wood V8, Coosa and Chattooga Railroad Company. 

capacity, and in pursuance or execution of their iK>wer8, vested 
in them by their charter, and could not have been preserved 
or proven well in any other way. The rule of evidence oq 
this subject is, that entries made by third persons, in the dis- 
charge of their official duties, are admissible as evidence, 
when the entry is one that it was the duty of such person to 
make, or when it belonged to the transaction, as phrt thereof, 
or its usual and proper concomitant. It must speak only to 
that which it was his duty or business to do, and not to extra- 
neous or foreign circumstances. The party making it must 
have had competent knowledge of the fact, or it must have 
been part of his duty to have known it. There must have 
been no particular motive to enter that transaction &lsely, 
more than any other, and the entry must have been made at 
or about the time of the transaction recorded. In such cases 
the entry is admitted as original evidence, being part of the 
res gestce. Here the entries put in evidence were such as 
were the duty of the commissioners to make, and which 
belonged to the transaction as parts thereof. They speak 
only to those things which were their duty to do. They 
not only had knowledge of the facts, but it was their duty to 
know them, and there was no particular motive that this 
Court can see, or has been suggested, to enter these transac- 
tions falsely, more than any other, and they were made at or 
about the time of the transaction recorded. There the entries 
relate to the meetings and actions of the commissioners as 
such, to the subscriptions of stock, the amount of the same, 
and the election and organization of the board of directors 
and the company — just what the charter required of them as 
commissioners. 

The remaining exceptions are to the charges, and refusal to 
charge on request of counsel for defendant. 

The defendant relied on two grounds of defense to tbe 
action: 

1. That his individual subscription had not only not been 
made in terms of the charter, but that it had been reoeired 
and allowed by the commissioners in direct violation of its 
express provisions in this, that the sum of five dollars on 



ATLANTA, MARCH TERM, 1861. 283 

Wood Of. Coosa and Chattooga Railroad Company. 

each share had not been paid in to the commissioners before 
such subscription bad been received and allowed, and that 
such subscription was therefore not obligatory on them, and 
could not be enforced by the corporation. 

2. That the company had not been organized in pursuance 
of the provisions of the charter, by the actual subscription of 
two thousand shares in the capital stock of said company in 
terms of the charter before its organization by the commis- 
sioners, and, therefore, the plaintiff could not recover : in 
other words, that the corporation were illegally exercising 
the franchise of this legislative grant of incorporation. 

The first position goes only to the liability of the defend- 
ant to pay for his stock ; and the second, to the validity of 
the charter. 

2. As to the first position : The provisions of the charter 
on this subject are as follows : " and no subscription shall be 
received and aUowed^ unless there shall be paid to the eommis- 
sianers, at the time of such stibscription, the sum of five dolr 
lars on each share subscribed^ for which the commissioners 
shall give to the subscriber a certificate, setting forth the 
number of shares taken by each subscriber, and amount per 
share paid them.^' It being in proof that this provision of 
the charter was not complied with by the defendant at the 
time of subscription, or since ; in fact, the amount then re- 
quired to be prepaid formed a part of the sum for which this 
suit was brought. The Court charged the jury, that ^'it is 
DO defence to this action that the commissioners waived the 
necessity of flefendant's paying the five per cent., and that it 
does not lie in his mouth to say that his subscription, so re- 
ceived and allowed by the commissioners, is, for that reason, 
void." Was that charge right ? We think that it was not. 
The commissioners were the appointed agents of the Legis- 
tare to open books and receive subscriptions to the capital 
stock of the company ; but in the exercise of this power 
they were limited to the terms and manner of subscription 
prescribed by the Legislature, from which the power was 
derived, and a subscription taken or allowed by them in vio- 
lation of their instructions, as contained in the grant, is void 



284 SUPREME COURT OF GEORGIA. 

Wood vs. Coosa and Chattooga Railroad Company. 



and of no effect whatever. Here the commissioners were 
expressly prohibited from receiving and allowing any sub- 
scription, unless the sum of five dollars on each share was 
paid to them at the time of subscription. Yet this subscrip- 
tion was received and allowed without the payment of five 
dollars on each of the shares at the time of subscription, or 
at any other time before or since. Such subscription, there- 
fore, was not only without authority, but in direct violation 
of express instructions, and is, therefore, void. It does not 
invest the subscriber with any of the privileges of a corpo- 
rator, nor does it render him liable therefor as a subscriber, 
stockholder, or otherwise. 

The principle here stated is expressly recognized in Poe vs. 
Napier, 12 Ga., 182. That was a contest between two sets 
of subscribers to the capital stock of the Manufacturers' 
Bank of Macon. Robert Collins and others, the first sub- 
scribers in point of time, subscribed for the whole amount of 
the capital stock, paying to the commissioners ten per cent 
in drafls, at thirty days, on New York, and partly in drafts 
on the banks in Macon, which drafts, when due, were paid 
in specie. Leroy Napier and others, the second set, subse- 
quently offered to subscribe for the whole amount, tendering 
to the commissioners ten per cent, in cash. The charter pro- 
vided, amongst other things, that: "When the amonnt of 
^250,000 00 shall have been subscribed, bonafide^ and the 
sum of ten per cent, thereon shall have been paid in gold or 
silver, or the bank notes of this State paying specie/' an 
organization was authorized. Napier and his associates 
claimed that the first subscription was illegal, because, under 
the act of incorporation, it was the duty of the commissioners 
to disallow all subscriptions, unless accompanied by theactaal 
payment of money, or a tender of it in gold, silver, or the 
notes of specie-paying banks. This brought up the question 
involved in this case directly for the adjudication, and this 
Court, on the point made, says: "If, indeed, it is true that 
the act requires the money to be paid at the time when the 
subscription is made, then I admit that there is no escape 
firom the conclusion of the counsel for the plaintiff in error. 



ATLANTA, MARCH TERM, 1861. 285 

Wood vs, Coosa and Chattooga Railroad Company. 

Por, if that is required^ the subscription would be void, no 
matter what other evidence is furnished in the record that the 
subscription is bona JideJ' But the Court held, that the 
subscription and payment of ten per cent, were not required 
by the act to be done simultaneously, and that the subscrip- 
tion was not therefore void. This opinion was not an obiter 
dictum, but was an adjudication, necessarily, of the point 
involved, and we reiterate and re-affirm that decision as a 
sound exposition of the law on this question. Again, in 
Mitchell vs. The Rome Railroad Company, 17th Ga., 574, 
the Court re-asserted the same princip^. In that case the 
note sued upon was given in place of payment of cash of the 
first installment for stock. The 4th section provided : '^ Upon 
the subscription for shares in said stock, the subscribers shall 
pay the sum of five dollars upon each share subscribed for 
by such subscribers : Provided, that said company may com- 
mence the construction of their railroad and boating so soon 
as three thousand (shares) shall be subscribed.^' Mitchell 
insisted, that as the five dollars on each share had not be^n 
paid in before organization, the organization was illegal, and 
the acts done under the same not binding." The Court held, 
that the subscription might be made at one time, and the 
payment of five dollars per share at another : that the pay- 
ment of the five dollars per share was not a condition prece- 
dent, either to the existence of the company as a corporation, 
or to its right to commence business. "Doubtless," says the 
Court, "if this payment were a condition precedent to organ- 
isition, the acts done by the company, unless this condition 
had been complied with, would be void." And void, not- 
withstanding any subscriber might have participated iu them, 
and given them his sanction, or might have taken part in any 
pretended organization, and even have become a director 
under a pretended organization. Here we might end the 
discussion on this point, but as other adjudications were re- 
ferred to and relied on in the argument, on both sides, it is 
necessary that I should notice them, which I will do as briefly 
as possible : 
The first case referred to, and relied on, iu support of the 



286 SUPREME COIJRT OF GEORGIA. 

Wood vs. Coosa and Chattooga Railroad Company. 

decision of the Court below, is that if Jenkins vs. Union 
Turnpike Co., 1 Caines N. Y. Rep., 481. In that case suit 
was brought for the amount of two installments or calls on 
subscription for stock in the company. The charter required 
that "every subscriber shall, at the time of subscribing, pay 
in to either of the said commissioners the sum of ten dollars 
for each share subscribed.'' This payment bad not been 
made. It was insisted, that a recovery could not be had, 
because there was no consideration for the promise, the ten 
dollars not having been paid ; that was urged as a distinct 
objection to the recovery, in connection with the want of con- 
sideration. 2. That the commissioners did not give the notice 
required by the act, to choose directors as soon as one thou- 
sand shares were subscribed. 3. That no order of the presi- 
dent, directors and company, requiring the payment of the 
installment in question, was stated in the declaration. 4. That 
the mode of enforcing subscription for stock prescribed by 
charter, in case of non-payment, was by forfeiture, and not 
by suit. 

The Superior Court overruling the several oljections, 
held that the subscription was recoverable. Courts since 
that time have been in great doubt as to the ground on 
which the Court made that decision. The charter prescribed 
the form of subscription to be made ; and the subscription 
having been made in that form, the Court says: ''We can 
not discover any ground, on which the promise ought to be 
considered as void. The subscription was taken by com- 
missioners, who were authorized to receive it, and in the 
form prescribed by tlie act. That form contains an absolute 
promise to pay the meney to the president, directors, and 
company. On one side the interest of the company in sell- 
ing the shares, and the public advantage to be derived from 
the success of the institution, and on the other the expected 
profit to accrue from the stock, were sufficient consideration 
to uphold the promise. By force of the act itself, also, it 
must be considered as good. The Legislature must also liave 
intended, that it should be obligatory; for else the fdrmal 
manner in which it was prescribed to be taken, would be «en.£e- 



ATLANTA, MARCH TERM, 1861. 287 

Wood vs, Coosa and Chattooga Railroad Company. 

kss and nugatory^ In relation to the non-payment of the 
$10 00 per share, at the time of the subscription, the Court 
says, that " the subscription was for the full sum originally 
due for each share. The ^10 00 on each share were due 
ioimediately, and the engagement with respect to that sum, 
was like a. note or obligation payable on demand. The con- 
tract was complete, and the defendant had a right to tender 
the payment of the §10 00 and demand its performance on 
the parj; of the company, who had an equal right to enforce 
it against him." Now it must be manifest, that whatever 
may have been the ground on which the Court put its 
decision, it was not impressed with the conviction tliat the 
pubscription was in derogation of the charter, or that the 
commissioners violated their duty in receiving the subscrip- 
tion without the payment of the $10 00; that was not 
regarded as a condition precedent, but that inasmuch as the 
subscription was made in accordance with the form prescribed 
hy the charter, it was a good and valid one. Here, then, is 
the difference between that case and the one before us : In 
that a form of subscription was prescribed that was followed 
by the subscribers. The commissioners were not prohibited, 
a< io this, from receiving and allowing subscription unless 
the $10 00 were paid at the time. The Court, in that case, 
regarded the charter as complied with ; in this we hold its 
j>lain letter to have been violated. That adjudication, there- 
fore, can not be an authority in this case. From the decision 
of the Superior Court an appeal was taken in this case to 
the Court of Errors, and on the hearing, the judgment of 
the Superior Court was reversed, on the ground, that the 
^ubseription was void for the non-payment-of the $10 00 at 
tiic time of subscription. The Court says: "The acts to be 
J performed by the commissioners were merely preparatory to 
'.'5 (the corporation's) creation. To give effect to their acts, 
tlicir power must be strictly pursued. They had no discre- 
r/on or latitude of action. Their line of conduct was marked 
vith the utmost precision. They were directed to exact 
tiom the persons who were to be admitted members of the 
rporation, both subscription and payment as a condition 



«'» » 



288 SUPREME CX)URT OF GEORGIA. 



Wood V8, Coosa and Chattooga Railroad Cornpanj. 

precedent to their admission. If they omitted either to mb- 
scribe, or to pay, they did not come within the terms of 
admission. If so, tiie bare act of subscription was wholly 
nugatory. The subscribers who were to meet^ could only 
constitute themselves such within the intent of the statute 
by a compliance with the terms prescribed by it. When the 
corporation was organized^ the directors might dispense with 
the exaction of the first payment. But if they did so, there 
was no ground for extending the doctrine of relation, to the 
transaction, so as to bring it within the rules applying to 
mutual contracts. For if the doctrine of relation is to be 
applied, it will carry it to a period beyond the existence of 
the body politic, with whom the contract is supposed to have 
been made. If the defendant had affirmed the contract, in 
all time intermediate the affirmance and the subscription, the 
contract had been suspended. Now it is a well established 
rule, that to give effisct to mutual contracts, a unity of time 
as to their commencement, so as to bind both parties from the 
same point of time, is essential. It did not constitute a con- 
tract, for the contract, if any, was : " I agree to pay $25 00 
for every share I acquire by this subscription,*' and if none 
were a/iquired none were to be paid for. 1 Caine's Reports, 
86. And this- latter ruling has been constantly adhered to 
since that time by the Court of New York, as the law of 
that State on this subject, and we think it decidedly the 
better decision upon principle and reason. Goshen Turn- 
pike Co. vs. Hurtiu, 2 Johns, 217 ; The Highland Turn- 
pike Co. vs. McKean, 11 Johns, 98. Two other cases were 
referred to and relied on, McRae vs. Russell, 12 Iredell, 244. 
In that case the subscciber for stock was required to pay the 
commissioners, $5 00 on each share subscribed, and on non- 
paymait the aubscription was declared void. The subscriber 
had not paid this sum, but instead, had given his bond, on 
which the suit was brought. Chancellor Ruffin held, that '' it 
is true, the act says his subscription was void, unless he paid 
the first installment. That only proves, that no recovery could 
be had on the svbscription. But it does not show, that if 
instead of paying cash he got a receipt for it by giving his 



ATLANTA, MARCH TERM 1861. 289 

Wood vs, Coosa and Chattooga Railroad Company. 

t)ODd| tlie bond woald also be void.'' So in the other case 
of the Greenville and Columbia Railroad Company vs. 
Woodsides^ 5 Rich. S. C. Rep., 145. The subscriber^ at the 
time he subscribed for the shares in the company's stock, did 
not pay, as directed by the charter, $25 00 in money, but 
gave his note to commissioners on which the suit was 
brought. The Court held : '^ If the defendant had done no 
more than subscribe for the shares there would be authority 
for saying, that a subscription without payment was a viola- 
tion of the terms on which the charter was granted, and a 
fraud on the public." *^ Here the defendant gave his note 
for the payment, and received his receipt for the same as 
money." He was, therefore, held liable. 

One other case was referred to and relied on by counsel 
for defendant in this record — ^that of Tar River Navigation 
Company vs. Neal, 3 Hawks's Rep., 20 ; but as that case is 
applicable to the next point, and not this, I will notice it 
more particularly in that connection. The identical case 
made in this case was considered in the Supreme Court of 
Pennsylvania : Hibernia Turnpike Company vs. Henderson, 
8 Sergeant & Rawle, 217. That was a suit to recover the 
5i]m of five dollars for a subscription for a share in that com- 
pany. In the charter it was provided " that every person 
offering to subscribe in the said books, shaU previously pay to 
the aUending commissioners the sum of jive dollars for each 
and ecery share to be siibsoribedJ' The Court held the pay- 
ment of the five dollars a condition precedent to the becom- 
iog a subscriber or shareholder, and as this payment was not 
naade^ that the subscription was void^ and could not be en- 
ibroed* Using this strong language, "Words more strong, 
and an intention more clearly expressed, to make the pay- 
meat of the five dollars a condition precedent to the subscrip- 
tion^ can not be conceived. By what authority, then, could 
the commisaioners, or the corporation, dispense with the con- 
dilioa? ^ corporation being the mere creature of law, can 
act is JBO other manner than the law prescribes, and must not 
^ pgBBiiited to enter into a contest with the Legislature con- 
the policy or expediency of the terms which have 
^0X4. xxxn— 19. 



290 SUPREME COURT OF GEORGIA. 

) 

Wood vff. Coosa and Chattooga Railroad Company. 

been dictated/' Assumiug that it was the intent.of the law 
that no subscription should be received, without a previous 
payment of the five dollars a share, the case will be reduced 
to this simple question : Can a contract be enforced in a 
Court of justice which was made in violation of an Act of 
Assembly? It is not the first time this question has been 
asked in this Court, and it has received but one answer, 
*^the contract cannot be enforced" I consider the contract in 
this case as void ab initio. The commissioners had no right 
to receive the subscription, or the corporation to ratify it. 
It was flying in the face of the law under which they drew 
their breath. I would willingly have supported this action, 
if possible, because it is with an ill grace that a man puts 
his hand to a contract, by which he expects to be benefitted, 
and afterwards refuses to comply with it. But it has struck 
me in one strong point of view, on which I cannot shut my 
eyes. The subscription was taken in direct opposition to the 
Act of Assembly. It was, therefore^ void. So of this case. 
The corporation depended for its existence purely on the will 
of the Legislature, who had the power and the right to dic- 
tate the terms and conditions on which one could become a 
member thereof, and entitled to the privileges and benefits of 
the grant. The condition prescribed in this charter to mem- 
bership, was the payment of five dollars on each share sub- 
scribed, at the time of such subscription, and without which 
no subscription *' should be received or allowed." The sub- 
scribers had not paid the five dollars; hence, his was no 
subscription ; it amounted to nothing, and could not I)e col- 
lected ; for, to allow such subscription enforced, would be to 
admit the subscriber a member of the corporation against the 
express declaration of the statute. This cannot be. It is 
said that the defendant has ratified his subscription by offer- 
ing, subsequently, to pay calls on that subscription, by voting 
in the organization, and otherwise acting as a member of the 
corporation. These were not the things prescribed by the 
act to enable him to become a member of the corporation. 
How can they have that effect when the terms of admission 
prescribed have not been performedf It is said, too, that the 



ATLANTA, MARCH TERM 1861. 291 

Wood vs. Coosa and Chattooga Railroad Company. 

company has been organized on the faith of his subscription^ 
and that of others; that the company have commenced the 
building of the road, and have expended large sums of 
money on the same; and that to allow the defendant to avoid 
his subscription, on the score of its illegality, or otherwise, 
would be to allow him to commit a fraud on others, who have 
subscribed innocently and in good faith, by compelling them 
to have the burden of his subscription as well as their own. 
If this were an action by one who had subscribed for stock 
on the £uth of this subscription, believing it to have been 
made in compliance with the charter, and who had been in- 
jured thereby, this might be a good argument to authorize a 
recovery in such action; but it cannot be a reason to author- 
ize a recovery by the corporation of a subscription made in 
direct violation of the charter. 

Counsel for plaintiff in error requested the Court to charge 
the jury, that '* Before a right to call on the defendant to 
pay up any portion of stock (allowing his subscription to be 
good) so subscribed by him, the plaintiff must prove to their 
satisfaction, that two thpusand shares of the capital stock, 
including that subscribed by defendant, has been subscribed 
for, and five dollars on each share paid at the time of sub- 
scription.^' The Court refused to give the charge, and this 
forms the third ground of exceptions. 

We hold that this I'equest was properly refused. The 
question made in this request differs from that involved in 
the charge already discussed, in this, that it goes to the valid- 
ity of the charter, the orgs^nization of the company under it, 
and the right of the corporators to the use of it. The other 
goes only to the liability of this particular subscriber. The 
one depends upon the will of the Legislature, the other upon 
the legeAhy of the contract of the defendant ui;der the char- 
ter. While the defendant cannot avail himself of the one as 
a defense to an action by the company against him, he may 
of the other. He cannot say that the corporation with whom 
he has treated or dealt, as a corporation, is not rightfully in 
the exercise of its powers, because the company having been 
established by the Legislature, and in the manner pointed out 



292 SUPEKME CX)URT OF GEORGIA. 

Killet V8. The State of Georgia. 

by the act; although the commissioners appointed by the act 
to organize the company, may have improperly exercised the 
powers conferred upon them. Those in possession, and 
actually in the exercise of the corporate rights, shall be con- 
sidered as rightfully there against wrong doers. /The validity 
of the charter, the right of those in possession to its use, 
cannot be called in question collaterally, but only at the in- 
stance of the government, in a proceeding instituted directly 
for that purpose. /if there has been an usurpation, it is upon 
the right of the sovereign alone, and its acquiescence therein 
is a waiver of the usurpation, and evidence that all things 
have been righfuUy performed. Tar River Navigation Co. 
vs. Neal, 3 Hawks., 520. Kisha, Coquillas and Centre 
Turnpike Co. vs. McConaly, 1 S. & R., 144. Slee vs. Bloom, 
5 Johns. Ch. 381. Williams vs. Southern Bank, 25 Ga., 536. 
Let the judgment be reversed. 



John Killet, plaintiff in error, va. The State of Geor- 
gia, defendant in error. 

1. On the trial of an indictment for carrying weapons in violation of 
law, the Judge charged the jary, '' that if the defendant carried the 
pistol, with only the butt exposed to view, and the barrel concealed, 
this was not carrying it in an open manner and fully exposed to view, 
and they would be authorized to find him guilty:" Hdd, That this 
charge was erroneous. The charge should have been, '^ that if the 
defendant carried the pistol, so exposed to view, that it could readily 
be seen and recognized as a pistol, by one having his person in view, 
he carried it, in legal contemplation, in an open manner, and fuWy 
exposed to view ; hut if it were so far concealed, though partially ex- 
posed, that it could not be readily seen and recognized as a pistoU it 
was carried in a manner forbidden by the statute, and the defendant 
was guilty." 

Indictment for misdemeanor, in Chattooga Superior Court. 
Tried before Judge Dawson A. Walker, at September Terra, 
1860. 



ATLANTA, MARCH TERM, 1861. 293 

Eillet vs. The State of Georgia. 

John Sillet was indicted for carrying a pistol, in violation 
of the statute of this State against carrying weapons con- 
cealed. 

The testimony adduced on the trial showed that on the 
26th day of December, 1859, and during Christmas holidays, 
the defendant with quite a number of other persons, were 
assembled at the house of a Mr. McCollum, in Chattooga 
county, and that the defendant had a single-barreled pistol, 
which he was frequently shooting — that all the persons pres- 
ent seemed to know that he had the pistol, and could gener- 
ally see it entire, when they looked at defendant — that once, 
during the day, a witness saw him have the pistol at his side, 
under the waistband of his pantaloons, with the butt stick- 
ing out and the barrel concealed. 

After the testimony had closed, the presiding Judge charged 
the jury, that " if the defendant carried the pistol in his 
pocket, with only the butt exposed to view, while the bari'el 
was concealed, this would not be carrying it in an open man- 
ner, and fully exposed to view, and under this state of facts 
you would be authorized to find the defendant guilty." 
The jury found the defendant guilty. 
Counsel for defendant then moved for a new trial, on the 
grounds — 

1st That the verdict was not sustained by the evidence, 
contrary to the evidence, without sufficient evidence, and con- 
trary to law. 

2d. That the verdict was contrary to the charge of the 
Court. 

3d. That the charge of the Court (as herein before set 
forth,) was contrary to law. 

The presiding Judge overruled the motion, and refused to 
.^rant the new trial, and the writ of error in this case is 
LToaght to reverse that judgment, 

Joseph Glenn and J. A. Glenn, for plaintiff in error. 

J. A. W. Johnson, (Solicitor General,) for defendant in 
error. 



294 SUPREME CX3URT OF GEORGIA. 

^ > 

Nisbettiv. Caotrell. 

By the Court — Jenkins, J., delivering the opinion. 

The question upon which this case turns, as stated in the 
second exception, was decided afler careful consideration at 
our recent sitting in Macon. 

The statute under which this indictment was framed, like 
all other statutes, must receive a reasonable construction. 
We are not satisfied with the construction given to it in the 
charge of the Court below, and have embodied our own in 
the judgment of reversal. 

Judgment reversed. 



William A. Nisbett, plaintiff in error, v%. William J. 

Cantbell, defendant in error. 

L Three things are necessary to maintain a bill for a new trial—igno- 
rance of the defense at the time the judgment at law was rendered ; 
diligence on the part of the complainant ; and that adequate relief 
cannot be had at law. 

2. A bill which seeks a new trial, on the ground of newly discovered 
evidence, should set out what testimony was offered on the former 
trial, so that the Court can determine whether the newly discovered 
evidence is cumulative or not, and also, whether the evidence, if let 
in, would vary the verdict. 

Decision on demurrer to a bill in equity, made hj Judge 
Dawson A. Walker, at the October Term, 1860, of Gor- 
don Superior Court. 

William A. Nisbett instituted his action of trespass, quart 
dausum fregit, against William J. Cantrell and John R. 
Taylor, returnable to the September Term, 1857, of Gordon 
Superior Court, alleging, that in August, 1857,, the defend- 
ant broke and entered his farm, demolished his fences, and 
carried away two hundred and fifty bushels of threshed wheat, 
and several stacks of un threshed wheat, worth, in all, three 
hundred dollars, the property of the plaintiff, and did him 
other damage. 



ATLANTA, MARCH TERM, 1861. 295 

» ^^ 

Nisbettv^. CaDtrell. 

Taylor died before the case was tried. Upon the trial of 
the case, at common law, a verdict was rendered in favor of 
platDtiff against the defendant, Cantrell, for $100 00. Can- 
trell entered an appeal to a special jury, and the cause was 
tried on the appeal at April Term, 1859, when a verdict was 
reodered in favor of the defendant. 

The plaintiff made a motion for a new trial on the grounds: 
IsL Because the verdict was contrary to the evidence in the 
case. 2d. Because the verdict was contrary to the weight of 
evidence. 3d. Because the Court erred in excluding the 
record of a trial in the Justice's Court, where the right of 
property was tried. 4th. Upon the ground of newly discov- 
ered evidence. The presiding Judge overruled the motion 
for a new trial, and his judgment was excepted to, and the 
case carried, by writ of error, to the Supreme Court, and by 
the decision of the Supreme Court, the judgment of the 
Court below was affirmed. 

The plaintiff then filed his bill in equity, in Gordon Supe- 
rior Court, alleging the foregoing facts, and also, that since 
the rendition of said judgments, he has ascertained and dis- 
covered new and material evidence, which, if it could be 
heard, would, and ought to, change the result of said trial on 
the appeal ; that he has ascertained that he can prove by 
William A. Moore and H. M. Moore, of the State of South 
Corolina, that the wheat which was seized and taken by de- 
fendant, in 1857, was plaintiff's wheat, and that one of the 
said witnesses saw plaintiff sow it, or a part of it, and that 
he paid for cutting said wheat, and that the seed wheat by 
which the wheat in question was produced, was measured for 
plaintiff by one of said witnesses ; that these witnesses re- 
sided in Grordon county at the time said case was tried, but 
were anfriendly to plaintiff at the time, and would not, and 
did not, disclose the facts, so that plaintiff could obtain the 
beoefil of their testimony. 

Tlie prayer of the bill was, that the judgments against the • 
plaiotiff be set aside, and a new trial awarded in the case. 

Hiedefeodant set up a demurrer to the bill on the ground^ 
that the bill does not set out the pleadings and proceedings 



296 SUPREME COURT OF GEORGIA. 

. n !■ - - ■ !■ .1 ' 1 1 m ^ 

Nisbett vs, Gantrell. 

in said case at common law^ nor does it set out and specify 
the errors, if any, in said judgment, and that there is no 
equity in said bill, and that the allegations in the bill are so 
vague, indefinite, and uncertain, that no decree could be 
based thereon. 

After the argument had thereon, the presiding Judge sus- 
tained the demurrer, and dismissed the bill, and that decision 
is the error complained of. 

J. E. Parrot and Milner & Parrot, for plaintiff in 
error. 

William H. Dabney, for defendant in error. 

By the Court — ^Lumpkin, J., delivering the opinion. 

This bill is filed to obtain a new trial at law. Three 
things are necessary to the maintenance of the bill— igno- 
i*ance of the defense at the time the judgment at law wafi 
rendered ; diligence on the part of the complainant ; and 
that adequate relief can not be had at law. (Taylor vs. Sul* 
livan, 15 Ga. Rep., 103). 

This was an action of trespasa, for entering upon the 
premises of the plaintiff and taking and carrying away, 
some two hundred bushels of clean wheat, besides some 
stacks of unthrashed wheat. The first verdict was for the 
plaintiff; the defendant appealed; and the jury found for 
the defendant. A new trial was moved for and refused. 
The case was brought before the Court, and the judgment 
of the Court below was confirmed. 

The complainant bases his application upon the discovery 
of new testimony, which he thinks would vary the finding. 
The witnesses are : H. H. Moore and Wm. A. Moore, both 
of whom reside in South Carolina, but were residing in 
Gordon county, in this State, when the case was tried. One 
• of them saw him sowing the wheat, or a part of it, and 
knows that he paid for the cutting of the wheat. The other 
was present when the wheat was measured to him, with 
which he planted the land. 



ATLANTA, MARCH TERM 1861. 297 

^^ 

Webster & Mann vs, Curry. 

The affidavit of these witnesses is not appended to the 
bill. It is said by complainant's counsel that the testimony 
of these witnesses has been taken, and is filed in the Clerk^s 
office; but it has not been seen by the opposite counsel. 
Now, while we do not doubt the fact, it will not do for the 
Coart to predicate its judgment upon it. Besides, the coun- 
sel may overrate its importance. This testimony is at best 
but cumulative. There must have been some testimony to 
have enabled the plaintiff to recover the first verdict. And 
the question, and the only question, has been, whose wheat 
it was? The evidence is necessarily cumulative. The bill 
should set out what testimony was oficred on the former 
trial : 1st. To show that the newly discovered testimony 
was not cumulative; and 2d. That it would vary the verdict 
if let in. We think, under the circumstances, that we 
sliould not be justifiable in awarding a new trial. If the 
Moores were present when the seed wheat was measured to 
the plaintiff, and when the wheat was sown and harvested, 
he mast have known it, and he could have subpoenaed them 
BS witnesses, notwithstanding the want of friendly feeling 
betsveen them. 

Let the judgment be affirmed. 



Webster & Mann, plaintiffs in error, vs. R. F. Curry, 

defendant in error. 

I. A machinist's lien must be enforced under the Act of 1884, (Cobb, 
^,) as extended by the Act of 1854, (Pamphlet Laws, 46,) provid- 
ing for mechanics' liens, and not under the Act of 1841, (Cobb, 426,) 
as extended by the Act of 1852, (Pamphlet Laws, 237.) 

Levy and claim, in Catoosa Superior Court. Decided by 
Hon. Dawson A. Walker, at the November Term, 1860. 

The question in this case springs oat of the following state 
of fiwrts, to-wit : 



298 SUPREME COURT OF GEORGIA. 

Webster & Mana vs. Gurry. 

On the 25th of September, 1868, Webster & Mann, who . 
were professional and practical machinists, furnished and 
delivered to T. B. Wooten & Co., partners in the rallllDg 
business, an engine and boiler, with appurtenances, some gas 
pipe, boxes, pullies, shaflts, and other items of machinery, for 
their mill, in said county, located near the town of Ringgold, 
on lot of land No. 155, near the Chickamauga, river, the 
whole of which machinery was worth, according to the agree- 
ment of the parties, the sum of $3,017 92, besides interest 
On the 23d of January, 1859, when the money became due, 
Webster & Mann demanded payment of the same, which 
was refused. On the 14th day of May, 1859, one of the firm 
of Webster & Maun made an affidavit of these facts before 
the Hon. Leander W. Crook, then presiding Judge of the 
Cherokee Circuit, upon which Judge Crook issued an order, 
directing the Clerk of the Superior Court of Catoosa county 
to enter up a judgment, in favor of the plaintiffs, against the 
defendants, and against the machinery specified, for the 
amount of the debt and costs, and to issue execution there- 
for, as directed by the statute in such case made and provided. 

Pursuant to this order of the Judge, an execution was 
issued by the Clerk, on the 16th May, 1859, and on the 1st 
June, 1859, it was levied upon the steam mill, machinery 
and fixtures, specified in the execution as the property of de- 
fendant. Robert F. Curry interposed a claim to the prop- 
erty levied on, and thefi.fa, and claim were returned to the 
Superior Court, according to law. 

After the testimony had closed on both sides, the presiding 
Judge dismissed the levy, on the ground, that a machinist 
must enforce hjs lien under the provisions of the Act of 
1834, and not under the Act of 1841, as was sought to be 
done in this case. This decision is the error alleged. 

H. J. Spbayberry and L. W. Crook, for plaintiffs in 
error. 

McCoNNELL & Trammell, for defendant in error. 



ATLANTA, MARCH TERM, 1861. 299 

Sprayberry pa, Culberson. 

By the Court — Lumpkin, J., deliveriug the opinion. 

The execution levied on the property in this case is to en- 
force a machinist's lien for machinery furnished a flouring 
mill. 

It is taken out under the Act of 1841, (Cobb, 426,) as 
extended by the Act of 1852, (Pamphlet, 237,) to enforce 
ileus against steamboats. It is contended that it should be 
brought under the Act of 1834, (Cobb, 555,) as extended by 
the Act of 1864, (Pamphlet, 45,) providing for mechanics' 
liens. And so this Court decided in the case of Penyear vs. 
Xesbit, (27 Ga. Rep., 515,) and for the reasons there given, 
we shall affirm the judgment of the Court below. 

Let the judgment be affirmed. 



H. J. Sphayberky, plaintiff in error, vs. A. B. Culber- 
son, defendant in error. 

Letters of administration granted by the Court of Ordinary on the estate 
of a person who died out of this State, having heirs in the State and 
apparently a lot of land in the county where the letters were granted : 
Hdd to be legal and valid. 

Rale nisiy on appeal from the Court of Ordinary, in 
Walker Superior Court. Tried before Judge Walker, at 
the August Term, 1860. 

A, B. Culberson, administrator of John Holder, deceased, 
was called upon by a rule nisiy to shew cause at the May 
Term, 1868, of the Court of Ordinary of Walker county, 
why his letters of administration should not be revoked 
upon the grounds therein mentioned. These grounds were, 
that Holder, at the time of his death, did not reside in, or 
have any effects in, the county of Walker ; because the 
Court granting the letters had no jurisdiction, and was im- 
posed upon when granting the same in being led to believe 
that the administration was for the benefit of the heirs and 




300 SUPREME CX)URT OF GEORGIA. 

Sprayberry V8, Culberson. ^©^ 

creditors of said estate; aod because it does not appear that 
there were any assets of said estate, either in the couoty of 
Walker or State of Georgia. And upon the additional 
grounds that Holder was living at the time the letters were 
granted, and th$it the fact of his death had not been shewn 
by the administrator. 

Upon hearing the rule nisi, at the May Term of the Court 
of Ordinary, the Court revoked and set aside the letters of 
administration of said Culberson, and an appeal was taken 
by him from this action of the Ordinary to the Superior 
Court of Walker county, and said appeal came on to be 
tried before a special jury at the August Term, 1860, of 
said Superior Court. 

It was admitted on the trial that A. B. Culberson, the 
administrator, had returned no inventory or appraisement of 
the estate of his intestate, Holder, and that he had not been 
notified of any claims or debts against the estate of his said 
intestate. 

Plaintiff introduced as a witness the defendant, A. B. Cul- 
berson, the administrator, who testified that, in the year 
1854, he was employed by one Boling Conner to institute an 
action of ejectment against Sprayberry to recover lot of land 
No. 298, in 26th district and 3d section of Walker county, 
Conner ' telling witness that he (Conner) claimed an interest 
in the land. He brought said ejectment in name of John 
H. Holder alone, as lessor of plaintiff. This action, while 
pending, was enjoined by a bill filed by Sprayberry against 
Holder and Conner. He further testified, that after he had 
instituted the action of ejectment, he, at the request of Con- 
ner, applied for and obtained letters of administration on the 
estate of Holder The object in obtaining the letters was to 
answer the bill, and to prosecute the action of ejectment 
He further testified that if it should appear that the land 
did not belong to Conner, and that it should be recovered as 
the estate of Holder, he, witness, would account to the heirs 
of Holder. He, witness, never knew Holder, and was not 
employed by him to sue for the land, or by his heirs to 
administer on the estate. 



ATLANTA, MARCH TERM, 1861. 301 

Sprayberry vs, Culberson. 

It was admitted that the land was granted to Holder, and 
is sitnated in Walker county, and that the ejectment and bill 
are still pending. 

It was proved by defendant, that Holder died in 1843, in 
the territory of Iowa, and was not at that time a resident of 
this State ; that his widow and his brother and brother-in- 
law live in Georgia^ and that Conner is not an heir-at-law 
of Holder. 

Sprayberry was in possession of the land when the action 
of ejectment was brought, and is still in possession. 

The evidence being closed, the Court charged the jury, 
that, upon the facts of the case the letters could not be 
revoked, and directed a verdict for defendant. The jury 
accordingly so found and the plaintiff excepted, and now 
here assigns said charge and verdict as error. 

SPRA.YBERRY, McCuTCHiN, for plaintiff in error. 

A. J. Hansell, McConnell, for defendant in error. 

By the Court. — Lyon, J., delivering the opinion. 

While this Court has no desire to encourage mere specu- 
lative administrations, but an earnest wish to discourage 
them to our utmost, we can not see, from the facts stated in 
this record, any reason for vacating these letters. On the 
contrary, from the facts disclosed, it appears that there is a 
lot of land in the county where the letters were granted, the 
legal title to which appears to be in the estate of the intes- 
tate, who died out of the State, and who has heirs, entitled 
to the same, residing in the State of Georgia, and to whom 
the administrator will have to account for the land in case a 
r'ecovery is had by him as administrator, in the absence of 
any superior or better title to the same, and none other is 
indicated by the facts of the record — the tenant in posses- 
sion, at whose instance this motion was made, showing no 
title or claim, either legal or equitable, why this recovery 
should not be had or the administration vacated. 

Let the judgment be affirmed. 



302 SUPREME COURT OF GEORGIA. 

- - -^ 

Scott vs. Harkins and Arthur. 

James N. ScoiTy plaint! fiT in error, vs. John Habkins and 
John H. Arthur, defendants in error. 

1. At the request of S., a claim against him is bought by H., at a large 
discount, under an agreement at the time, that if S. will refund to H. 

' the amount paid for the claim, with interest, by the time the same is 
due, S. shall be released as to the balance. S. failing to make pay- 
ment according to the contract, H. is proceeding to collect the whole 
claim : Hettf That the collection ought not to be enjoined, except 
upon condition that S. pay to H. the amount paid by him for the claim, 
with interest thereon, according to the contract. 

2, The assignee of a judgment takes it, subject to all the equities be- 
tween the original parties. 

Bill for specific performance, injunction, and relief, in Gor- 
don Superior Court, decided by the Hon. Dawson A. Walk- 
er, at the October Term, 1860. 

James N. Scott exhibited his bill against John Harkins 
and John H.Arthur, in which the following facts are alleged, 
to-wit : 

In September, 1865, the complainant, James S. Harkins, 
and John C. Butler, formed a mercantile partnership under 
the firm name and style of Scott, Harkins & Company, and 
transacted business in that form, until the 26th of March, 
1856, when the partnership was dissolved by mutual consent 
Before dissolution, the firm had purchased a stock of groce- 
ries, which Butler had taken to the town of Kesaca for sale. 
When the partnership was dissolved it was agreed that the 
complainant should take the stock of dry goods then on hand 
at the store in Calhoun, and pay off all the outstanding debts 
against the firm for dry goods, and that Butler should take 
the stock of groceries on hand, at Resaca, and pay off all 
the liabilities of the firm for groceries. The complainant 
proceeded, in good faith, to a full compliance with the agree- 
ment on his part. The firm owed Baker, Wright & Co., of 
Augusta, a debt of $502 00, by open account, for groceries. 
Baker, of said firm of Baker, Wright & Co. came up to 
Calhoun to close up said account, and being fully informed 
of the agreement and terms upon which the firm of Scott) 



ATLANTA, MARCH TERM, 1861- 303 

Scott vs. Harkins and Arthur. 

Uarkins & Co. was dissolved, took Butler's individual note 
for the grocery bill, receipted the account, aitd went away. 
Some time thereailer Butler's note was sent back to him by 
mail, with directions to substitute the note of Scott, Harkins 
& Co. therefor, which Butler did, in violation of his agree- 
ment at the time the partnership was dissolved. Afterwards 
Baker, Wright & Co. brought suit on the note, in the Infe- 
rior Court of Gordon county, against Scott, Haskins & Co., 
aad complainant filed a plea of the general issue, and intend- 
ed to set up the defense arising out of the state of facts before 
detailed. When trial t«rm came, the witness by whom com- 
plainant expected to make good his defense, was absent, and 
his attorney was forced to confess a judgment against the 
defendants. Complainant entered an appeal to the Superior 
Court, and pending the appeal. Baker, Wright & Co. pro- 
posed to compromise the claim at about fifly cents in the 
dollar, Butler having in the meantime moved to the State of 
Arkansas. Complainant being unable, or unwilling, to buy 
the claim, went to John Harkins, the brother of James S. 
Harkins, and explained the whole matter to him, and how 
James S. Harkins and complainant were released from the 
debt, and that Butler alone was liable therefor, and asked 
the said John Harkins to buy it. John Harkins replied that 
if he could get the claim low enough, and on time, he would 
hujit; that he wanted to build a house, and that by that 
means he could employ Butler, who was a house carpenter, 
to do the work. John Harkins, with a full knowledge of all 
the facts, and with a distinct understanding that neither 
complainant nor James S. Harkins was liable tyr the debt, 
^nd that he was to look for payment to Butler alone, bought 
said claim for $200 00, to become due and payable twelve 
months after its date. The case of Baker, Wright & Co. 
^nst Scott, Harkins & Co., on said note, came up for trial, 
^nH complainant explained the whole transaction to Col. 
Michael Francis, the attorney of John Harkins, and told 
him of Harkins's express agreement to release complainant 
and James S. Harkins from said debt, and to accept a con- 
fession of judgment from Butler alone; to all of which 



304 SUPREME COURT OF GEORGIA. 

Scott vs, Harkins and Arthar. 

1 

Francis replied, that he would take a judgment against all 
the members of the firm of Scott, Harkins & Co., with the 
distinct understanding that the agreement between complain- 
ant and John Harkins should be carried out, and the judg- 
ment should be pressed against Butler alone. Under this 
agreement the judgment was taken against Scott, Harkins 
& Co., and Harkins, in fulfillment of his contract and prom- 
ise, executed a release to James S. Harkins, his brother, and 
sent an exemplification of the judgment to the State of Arkan- 
sas for collection out of Butler, who, it was said, was solvent. 
Afterwards, John Harkins sold and controlled the judgment 
to John H. Arthur, who knew all the facts hereinbefore 
stated, and who paid nothing for the claim, but is combining 
and confederating with John Harkins to injure and defraad 
complainant. Arthur pointed out the house and lot of com- 
plainant, and some other property, to be levied on under the 
fi. fa.j and the property was levied on and advertised for sale. 

The prayer of the bill is, that the collection of the fi. fa. 
out of complainant may be enjoined, and for general relief. 

On the 25th of August, 1860, the presiding Judge granted 
a temporary injunction, and passed an order requiring the 
defendants to show cause, on the second Tuesday in October 
thereafter, why an injunction should not be granted as pray- 
ed for. 

At the time designated in the order^ the defendants ap- 
peared and filed their answers plainly, fully, and distinctly 
denying all the facts and circumstances on which the equity 
of the bill was founded, but admitted in their answers, that 
John Harkjns, at the request of complainant, did buy the 
claim from Baker, Wright & Co., for two hundred dollars, 
agreeing with complainant at the time, that if he (the com- 
plainant) would pay back to Harkins the said sum of two 
hundred dollars, with interest, by the time the same should 
become due, he would not look to complainant and Jam^ 
S. Harkins for the balance, but look to Butler alone, for snch 
balance; but that complainant omitted to make said pay- 
ment 

The answers also admitted that John Harkins informed 



ATLANTA, MARCH TERM, 1861. 305 

Scott vs. Harkins and Arthnr. 

Arthur of these facts, when the claim was transferred to him, 
and that Arthur bought the claim with notice of said agree- 
ment, and also of complainant's failure to make the payment. 

Upon reading the bill and answers, and hearing argument 
thereon, His Honor Judge Walker passed an order " that 
an injunction do issue in accordance with the prayer of 
the bill as to that part of the judgment and execution over 
and above the sum paid by the defendant, Arthur, for the 
same, to-wit: the sum of two hundred and twenty-seven 
dollars, with interest from the 2d day of August, 1860, and 
costs, and that defendants be allowed to proceed to collect 
that part of said judgment, and injunction being refused as 
to that part of the same/' 

This decision is complained of as error, before this Court. 

MiLNER & Parrot, for plaintiff in error. 
William H. Dabney, for defendants in error. 

By the Court — Jenkins, J., delivering the opinion. 

This is a case in which both parties are dissatisfied with 
the ruling of the Court below; the complainant insisting 
that the Court should have granted a general injunction; and 
the defendant maintaining that none should have been grant- 
ed. It is apparent that the answers of the defendants deny 
all the equity asserted in the bill ; and had they stopped there, 
their position before this Court would have been tenable. But 
the defendant, Harkins, goes further, and acknowledges that, 
at the time, he, by request of complainant, purchased the claim, 
he promised that if complainant would pay the sum he (Har- 
kins) was to pay for it, at the time such payment would become 
due, with interest, he (Harkins) would release complainant 
as to the balance ; but that complainant had failed to comply 
with this condition, and he, (Harkins,) having, from his own 
resooroee, paid the sum at the time contracted, had assigned 
it to Arthur, the other defendant, communicating to him the 
above facts, and adding, that the time for compliance with 
this oonditton having passed, Arthur took the judgment re- 
Vol-, xxxn — 20. 



\ 



306 SUPREME CX)URT OF GEORGIA. 

Scott vs, Harkins and Anhar. 



leased from this conditional agreement or promise. Arthur 
answers to the same effect, and ignores all the allegations in 
the bill. 

The only ground for Hn injunction is furnished by this 
voluntary statement of Harkins. If the pleadings disclose 
any equity in behalf of complainant, it is to be found in the 
promise of the defendant, Harkins, making for the complain- 
ant a case different from that stated in his own bill. So we 
think the Court below must have regarded it It would 
seem probable that the complainant was induced to confess 
judgment in part, at least by this, or a like promise, bj 
Harkins. Out of this state of things might arise an equity, 
but the question would again occur, whether be had not lost 
that equity by &iling to make payment, as he had contracted 
to do. 

Here would arise the question whether or not, in this case, 
time was of the essence of the contract ; and this question 
has not been discussed before us. We are of opinion that 
the Judge very properly refused a general injunction. We 
think, too, that in view of all the circumstances of the case, 
it was proper to grant an injunction for the excess above the 
$200 00, and interest actually paid by Harkins, but only 
upon terms. The order of the Court was too liberal to the 
complainant. Before asking equity he should do equity. 
The defendant should not be tied up as to a part, and left to 
take the chances of getting the remainder, and subjected to 
the laVs delays. The order should have been, that upon 
payment, by complainant to the defendant, Arthur, of the 
sum paid by Harkins, with interest, injunction issue for the 
remainder due, until the further order of the Court. As to 
the relation sustained by Arthur, as assignee of the judg- 
ment at law, to the case, we need only say that the settled 
doctrine of this Court is, that the assignee of a judgment 
takes it subject to all the equities between the original parties. 

Let the judgment be reversed. 



ATLANTA,, MARCH TERM, 1861. 307 

ttcG«e et €U,f vi. Outhry and Powell. 

Doe, ex dem., Thomas W. McGee, et oL, plaintiffs in error, 
«8. William Guthby, and William Powell, defend- 
ants in error. 

1. The prodactioQ of a paper, upon notice that is not relevant to the 
issue, bat which recites another paper that is pertinent anil material 
wi]l not OTercome the necessity of proof of execution of the latter 
paper that is material. Its execution must be proven, notwithstand- 
ing the admission of the other of contemporaneous date containing the 
recitation. More especially is this so when the interests of one of the 

f parties to the suit is to be affected by the suit who is no party to the 

I paper, and who does not claim or hold under it. 

' 2. A charge of the Court oif adverse possession, that 'Mf S. (under 
vhom the tenants hold) took possession of a portion of the lot of 
land in good faith under his bond for titles, and was using it as his 
own, and cultivating it as his own, making such improvements as he 
conveniently could, this would make his possession adverse. If you 
find the seven years adverse possession in favor of defendants, you 
should render a verdict in their favor, *' such charge is erroneous, 
being too general and indefinite. The charge should have been, that 
if S. went into the actual possession of any part of the lot in contro- 
versy under the bond for titles from Asher, and he, together with 
defendant, if they went in under him, remained in the actual, open 
and notorious possession of the lot, continuously, uninterruptedly 
and adversely for the space of seven years, previously to the com- 
mtncemeiU of the st<i^,'that then the plaintiff could not recover. 
3. T. J. Asher, on 28th November, sold a lot of land to Jesse H. Stan; 
sell, and made a bond for titles. On 29th September, 1867, Asher 
made his deed to Stansell for the lot, and Stansell, in October, 1867, 
sold and conveyed to defendants. Stansell and defendants, under 
this title, took and held possession of the lot. Henry H. McQee, on 
^ 9th January, 1861, sold the same lot to one Hardy G. Tatum, and 
gave his bond for titles. Henry H. McGee had no title to the land, 
but the title was in one Dorcas McGee, the widow and heir-at-law of 
Tlioinas McGee, the drawer and grantee of said estate. Dorcas 
McQee, the true owner of the land at the time, on the lOth February, 
1866, sold and conveyed the lot to Henry H. McGee, who had, in 
1861, sold to Tatum, and he, Henry H. McGee, on 8d October, 1868, 
add and conveyed the lot to Emory Hancock, who brought ejectment 
for the recovery of the land in the several demises of Dorcas McGee, 
Hniy H. McGee, and himself. The Court on these facts charged, in 
eftd, that no recovery could be had on the demise^from Hancock, as 
th% deed to him was made adversely to the possession of the defend- 
nte^ and therefore void ; that no recovery could be had on the demise 
ftott Henry H. McGee, because the deed to him inured to the benefit 
olf md p8ia«d the title to, Hardy C. Tatum, to whom he had previously 



308 SUPREME COURT OP GEORGIA 

McGee et al,, vs. Gathry and Powell. 

sold it, and therefore there was no title in him or either of the plain- 
tiffs to authorize a recovery. This charge was erroneous because if the 
deed from Henry H. McGee to Emory Hancock was void on account 
of its being adverse to the possession of defendants ; that, from Dorc&s 
McGee to Henry H. McGee, was equally so, whether it inured to hli 
own benefit or to Tatum^ for, whether to one or the other, it was equally 
adverse ^o the possession of defendants, and would leave the title 
in Dorcas McGee, one of plaintiffs* lessors, on whose demise a recovery 
might be had. 

Ejectment, in Walker Superior Court. Tried before Judge 
Walker, at the February Term, 1861. 

This action was brought to the November Term, 1858, upon 
the several demises of Thomas W. McGee, Dorcas McGee, 
Henry H. McGee and Emory Hancock, against William 
Powell and William C. Guthry, to recover lot of land No. 
130, in nth district of the 4th section of Walker county. 

At the trial, plaintiff showed a grant to Thomas W. Mc- 
Gee, the death of the grantee, and that Dorcas McGee is his 
only heir-at-law, a deed from Dorcas McGee to H. H. Mc- 
Gee, dated 10th February, 1855, a deed from H. H. McGce 
to Emory Hancock, dated 3d October, 1 858, proved posses- 
sion in defendants at the time of action brought, and closed 
his case. 

Statutory title in themselves, and an outstanding title in 
one Tatum, were relied on by defendant's for their defenses. 

Defendants proved by Henry S. Davis possession of the 
lot bj Jesse H. Stansell, under whom they hold, in tlic Sum- 
mer or Fall of 1851, and then offered a bond for titles made 
by T. J. Ashur to Stansell, dated 28th November, 1850, to 
the introduction of which bond plaintiff objected, as being 
no color of title, but the objection was overruled and the 
bond admitted in evidence. Defendants then offered a deed 
from T. J. Ashur to Stansell, dated 29tli September, 1857, 
and deeds from Stansell to themselves, dated in October, 1857. 

Defendants then offered a good deal of testimony to show the 
commencement of possession in Stansell, but as there was re- 
butting testimony on this point, and as it was not passed on by 
the Court, it is not necessary to include it in this statement. 



ATLANTA, MARCH TERM, 1861. 309 

McGee et aZ., vs, Outhry and Powell. 

Defendants next offered a bond from Henry H. McGee to 
Hardy C. Tatum, conditioned to make titles in twelve months, 
dated 9th January, 1851, and the following receipt, which 
was drawn from the possession of plaintiff by notice : 

Georgia, Scriven County : 

I have this day received of Henry H. McGee (his bond) 
obligating himself to make titles to lot of land No. 130, in 
the 11th district and 4th section of Walker county. Now, 
if anything should take place to put it out of the power of 
said Henry H. McGee to procure said titles, he is to pay me 
sixty dollai's in lieu thereof, in balance of the price of cream 
colored horse. 

Signed and sealed the 9th of January, 1851, in presence of 
llarv McGee. 

m 

The bond had no official attestation. 

To the introduction of the bond and receipt plaintiff ob- 
jected, on the ground that the execution of the bond was not 
proven; the objection was overruled, and they were admitted 
in evidence. Defendants here closed, and after being charged 
by the Court, the jury returned a verdict for defendants, 
whereupon plaintiff moved for a new trial, on the grounds : 

1. Because the Court erred in admitting the bond from 
Asher to Stansell. 

2. Because the Court erred in admitting the bond from 
Henry H. McGee to Tatum, accompanied with an agreement 
from Tatum to McGee, without further proof. 

3. Because the Court erred in charging the jury as follows: 
"Something has been said about the possession of Stansell 
being of a very small portion, and is not sufficient to make the 
possession adverse. In relation to this question, this is the 
law: If 'Stansell took possession of a portion of the lot, in 
good faith, under his bond for Vitks, and was using it as his 
own, and cultivating it as his own, making such improve- 
ments as he conveniently could on it, this would make his 
posBeasion adverse. If, on tlie contrary, he was endeavoring 
to take a secret or clandestine possession of the land, and the 



310 SUPREME COURT OF GEORGIA. 

McGee et aZ., vs. Guthry and Powell. 

■»■■■ « 

possession was not open and notorious, then the taking pos- 
session of a small portion would not be adverse. If yoa find 
the seven years adverse possession in favor of the defendants, 
you should find a verdict in their favor. If not, then yon 
should go further in the investigation, and consider the 
other grounds of defense, and that is, defendants insist that 
they have shown the legal title to have passed to, and now is 
in, one Hardy C. Tatum. If the proof shows the title to be 
in Tatum, then plaintiff cannot recover, for, as I have already 
instructed you, the plaintiff, if he recovers, must recover on 
the strength of his own title. Defendants introduced a bond 
from H. H. McGee to Tatum, dated in January, 1851, with 
a receipt from Tatum, drawn from plaintiff's possession by a 
notice, and they insist that the two papers show that Tatum 
paid H. H. McGee for the land at that time, and that they 
show a legal title in Tatum. 

These two papers constitute the contract between Tatum 
and McGee, and if from these papers, in evidence, you be- 
lieve that Tatum did pay for the land at the time, 9th Jan- 
uary, 1851, and took McGee's bond for titles, this would 
constitute a legal title, and would protect these defendants 
against a recovery in this case, even though they do not hold 
under Tatum. It will be sufficient if the title was not in 
plaintiff at the commencement of this suit. 

Henry H. McGee sold to Tatum, 9th January, 1851. The 
papers show he did not get the deed from Dorcas McGee 
until afterwards, say 10th January, 1855, but when Dorcas 
McGee made the deed to H. H. McGee, if H. H. McGee had 
sold it to Tatum, and received pay for it, the title thus con- 
veyed inured to the benefit of Tatum, and in law passed the 
title to Tatum, and under this view of the case, Henry H. 
McGee would have no title to ^convey to Hancock, or any 
one else but Tatum. 

If, however, you are not satisfied, from the evidence, that 
Tatum paid for the land, then defendants would not be pro- 
tected under Tatum's title. If, however, he did pay for it, 
defendants would be protected by this title. Defendants being 
in advei*se possession at the time Hancock received his deed 



ATLANTA, MARCH TERM, 1861. 311 



McGee ti aL^ vs- Guthry and Powell. 



from McGee, that deed is void as against defendants, and 
therefore no question arises as to whether Hancock had notice 
of Tatam's title or not. No recovery can be had in Han- 
oock's name, as admitted by Hancock's counsel/' 

Underwood, Shropshire, Dabney, for plaintiff in error. 

McCoNNELL, for defendants in error. 

By tte Court — Lyon, J., delivering the opinion. 

This was an action of ejectment for the recovery of lot of 
land No. 130, in the 11th district of Walker county, by 
John Doe, on the several demises of Thomas W. McGee, 
Boreas McGee, Henry H. McGee and Emory Hancock, 
against Richard Roe, casual ejector, and William C. Guthry 
and William Powell, tenants in possession. On the trial, the 
plamtiff put in evidence the plat and grant from the State of 
Georgia to Thomas W. McGee, dated 1st July, 1843, for the 
lot in question. Then proved by Josiah Lee and Sarah Lee, 
the death of Thomas W. McGee, in 1847, without children, 
and leaving his wife, Dorcas McGee, his only heir-at-law 
surviving. A deed from Dorcas McGee to Henry H. McGee, 
dated lOth February, 1855. A deed from Henry H. McGee 
to Emory Hancock, dated 3d October, 1858, proved defend- 
ants, Guthry and Powell, in possession of the land at the 
commencement of the suit, and closed. The suit was com- 
menced 2d November, 1858. 

The defense rests upon two propositions. 1. That the 
defendant had been in possession of the lot more than seven 
years anterior to the commencement of the suit, claiming the 
same adversely under a colorable title derived from one 
Thomas J. Asher; that is, that they had a statutory title to 
the lot 2. That the plaintiffs were not entitled to recover 
because of the existence of an outstanding title better than, 
and {laramount to, that of the plaintiff, in one Hardy C. 
Taiem. And as the questions that arose on these propo- 
sitions are entirely independent, I shall consider them sepa- 
raidj* 



312 SUPREME COURT OF GEORGIA. 

McGee et aZ., vs. Guthry and Powell. 

As to the statutory title, the defendants claim that one 
Stansell, under whom they hold, went into the possession of 
the lot some time in the year 1851, previous to the first day 
of November of that year, under color of title, and that he 
and they have been continuously in the possession of the lot 
adversely for more than seven years anterior to the com- 
mencement of the suit. In support of this position defend- 
ant put in evidence a bond for title from one Thomas J. 
Asher to the said Stansell, dated 28th November, 1850; a 
deed from Asher to Stansell for same lot dated 29th Septem- 
ber, 1857; and a deed from SCansell to the defendants for the 
lot dated in October, 1857 ; also, a number of witnesses as 
to the possession, some of whom testified that Stansell took 
possession of the lot in the Summer or Fall of 1851, and 
previously to 1st November of that year ; others again, that 
actual possession was not taken until after that time. This 
is about the substance of the testimony on both sides, as to 
this question. 

The only point made on this branch of the defense grows 
out of the charge of the Court. 

The Court charged the jury, "that if Stansell took pos- 
session of a portion of the lot in good faith under his bond 
for titles, and was using it as his own, and cultivating it as 
his own, making such improvement as he conveniently could 
on it, this would make his possession adverse. If, on the 
contrary, he was merely endeavoring to take a secret or clan- 
destine possession of the land, and ' the possession was not 
open and notorious, then the taking of a small portion 
would not be adverse. If you find the seven years adverse 
possession in favor of defendant, you should render a verdict 
in their favor." The objection to this charge is, that it is too 
general and indefinite; there is no explanation to the jury, 
the seven years possession should have anterior to the com- 
mencement of the suit, or that it must have been continuooa. 
The Court, instead of the charge given, should have charged 
the jury, that if Stansell went into the actual possession of 
any part of the lot in controversy under the bond for titles 
from Asher, and he, together with defendants, they holding 



ATLANTA, MARCH TERM, 1861. 313 

McGee ei al,, vs. Guthry and Powell. 

onder him, remained in the actual, open and notorious pos- 
session of the lot continuously, uninterruptedly and adversely 
for the space of seven years previously to the commencement 
of the suit, then the plaintiff could not recover. 

There was an objection to the admission of the bond from 
T. J. Asher, as evidence, but for what reason does not appear, 
and as the point was not insisted upon in the argument, we 
only notice the point to say, that there was no error in this 
roling-^the bond was admissible for the purposes for which 
it was offered, as color of title. 

As to the other grounds of defense, the defendants pro- 
posed to put in evidence a bond for titles to this lot, from 
Henry H. McGee, one of the plaintiff's lessors, to Hardy C. 
latum, dated 9th January, 1851, together with an acknowl- 
edgment by Hardy C. Tatum, of the same date, to Henry 
H. McGee, reciting the receipt of this bond for titles, and in 
which Tatum agrees, that if anything should take place to 
put it out of the power of said McGee to procure titles to 
said lot of land, that McGee was to pay him, Tatum, sixty 
dollars in lieu thereof, la balance of the price of the cream 
<?olored horse. The bond for titles stipulated that titles were 
to 1)6 made within twelve months. This testimony was ob- 
jected to by plaintiff, which objection was overruled, and the 
japers put in evidence. The objection rests on the ground 
that the execution of the papers was not proven. 

As the receipt signed by Tatum was produced by the 

p/aintiff upon notice, it is claimed that this rendered proof 

of its execution unnecessary, and as it recites the bond, it is 

insisted that that made any proof of its execution unnecessary. 

It 18 a general principle, that when a party to a suit, in 

pursuance of a notice, produces an instrument to which he is 

a party, and under which he claims a beneficial interest, it 

will not be necessary that the other party should call an 

attesting witness to prove the execution. But this rule does 

not aothorize a party to call for the production of, and to put 

in, evidence a paper that has of itself no connection with, or 

relevancj to, the issue, like the receipt from Tatum to McGee, 

ibr tbm mjie purpose of laying a foundation to get in evidence, 



314 SUPREME COURT OF GEORGIA. 

McGee et al. , vs, Guthry and Powell. 

without proof of ezecutioiiy another paper that is perti- 
nent to the issue. This was a sufficient reason to have ex- 
cluded these papers from the operation of the above rule, on 
which the Court below evidently allowed them to go, in evi- 
dence, without proof of execution. In addition to this, there 
is another reason why this rule could not obtain in this case. 
Henry H. McGeCi it is true, was a party to this suit, and he 
may possibly have been entitled to, or claimed, a beneficial 
interest in the receipt from Tatum to himself, but there 
were other parties to this suit, whose interest was proposed 
to be affected by this evidence, that were no parti&i to the 
receipt of Tatum, and in no wise beneficially interested there- 
in. Thus Emory Hancock was a party to the suit. He was 
the plaintiff's last lessor, and down to whom, through Henry 
McGee, the title was carried. He was the real party plain- 
tiff, for whose benefit the suit was brought and prosecuted. 
He had no beneficial interest in that receipt, was no party 
thereto, and the bond for titles was offered in evidence to 
defeat his title. He had a right, therefore, to call for proof 
of the actual execution of the bond, although the receipt 
reciting such a bond, and of cotemporaneous date, was pro- 
duced upon notice. 

These papers being in evidence, the Court charged the 
jury thereon, that if '^ Tatum did pay for the land at the time, 
9th January, 1851, and took McGee's (Henry H.) bond for 
title, this would constitute a legal title, and protect these 
defendants against a recovery in this case, even though they 
do not hold under Tatum. It will be sufficient if the title 
was not in the plaintiff at the commencement of this sait. 
Henry H. McGee sold to Tatum, 9th January, 1851. The 
papers show that he did not get the deed from Dorcas 
McGee until afterwards, say 10th January, 1855, but when 
Dorcas McGee made the deed to H. H. McGee, if H. H. 
McGee had sold it to Tatum, and received pay for it^ the 
title thus conveyed inured to the benefit of Tatum, and in 
law passed the title to Tatum ; and under this view of the 
case, Henry H, McGee would have no title to convey to Han- 
cock, or any one else bnt Tatum. If, however, you are not 



ATLANTA, MARCH TERM, 1861. 315 

McOee et cU., vs. Gathry and Powell. 

tisfiedy from the evidence, that Tatum paid for the land, 
en. defendants would not be protected under Tatum's title. 
', hoi^ever, he did pay for it, defendants would be protected 
r this title. Defendants being in adverse po&session at the 
tne Sancock received his deed from McGee, that deed as 
^inst defendants is void, and therefore no question arises as 
> whether Hancock had notice of Tatum's title or not. No 
^covery can be had in Hancock's name as admitted by Han* 
jck's counsel." 

Whether the important principles^ stated by the Court in 
be charge, are sound rules of law, it is not necessary for the 
^ouTt to consider, neither do we pass upon them, (speaking 
or myself alone, however, I must say, that I cannot assent 
:o any one of the propositions therein stated as being the 
aw,) hut conceding, for the determination of this case, that 
:he l^al propositions stated are true, still the charge is erro- 
neous in their application to the facts. The Court states that 
the deed from Henry H. McGee to Emory Hancock having 
been made adversely to the possession, is void on that account, 
and no recovery can be had in his name ; neither could a 
recovery be had in the name of Henry H. McGee, because there 
is a legal title shown out of him in Hardy C. Tatum. Now, 
it must be remembered, that the title of Tatum and the de- 
fendants, are as independent of each other as that of the 
plaintiflk' and defendant8\ There is no connection whatever 
between them. The defendants do not claim under Tatum, 
or through him. He is not in possession, hut the possession 
of defendants is as adverse to him as to the plaintiffs. The 
defendant found this title, or claim of title, outstanding, and 
laid hold of it to repel a rec<^very by the plaintiffs. The pos- 
session of the defendants being out of the way, the deed from 
Henry H. McGree to Hancock could not be void as against 
Tatum, unless made with notice of his title or equitable in- 
terest in the lot. But the defendants being in possession, 
McGree's deed is void, in consequence of that possession, as 
against the defendants, as the Court below states. Now, if 
that is true, the deed from Dorcas McGee to Henry H. 

McGree, which was equally adverse to the possession, would 



316 SUPEEME COURT OF GEORGIA. 

Sullivan vs, Hugly et al, 

also be void, and for the same reason, leaving the title still 
, in her, and never reaching either to Henry H. McGee or 
Tatum, so as to constitute an outstanding title to prevent a 
recovery in the demise in the declaration from Dorcas 
McGee. Hence the charge of the Court was erroneous. 
Let the judgment be reversed. 



Spencer Sullivan, Adm'r, plaintiff in error, vs. Ander- 
son Hugly, et a/., by next friend, William W. Collier, 
defendants in error. 

1. A witness will not be permitted to prove the opinions of oUiera on 
any question. 

2. Where the verdict is against the issue of adulterine bastardy, this 
Court will not disturb the finding, unless a case of plain, natural im- 
possibility has been made out by the evidence. 

In equity, in Monroe Superior Court, Tried before Judge 
Cabaniss, at August Term, 1860. 

Amos Hugly and his wife Caroline had born to them du- 
ring their coverture, a male child, Franklin Hugly. WLen 
Franklin was bom they lived in Upson county. They af- 
terwards moved to Chattooga county, where Amos Hugly 
died ; his widow next died, and then Franklin also died. 

This bill is brought against Spencer Sullivan, as adminis- 
trator of Franklin Hugly, for an account and distribution, by 
William W. Collier, as next friend of Anderson Hugly, and 
nine others, minors, who allege ^hat they are the next of kin, 
and hcirs-at-law of Franklin Hugly, on the paternal side, 
and entitled to ten-fourteenths of his estate, and that James, 
John, Charles and Thomas Sullivan are his next of kin on 
the maternal side. 

Spencer Sullivan, in his answer, while admitting his lia- 
bility to account with the heirs-at-law of Franklin Hugly, 
both for the whole of his estate which came into his hands 
as administrator, ^nd for the hire of the negroes belonging 



ATLANTA, MARCH, TERM, 1861. 317 

Sullivan vs. Hugly et aL 

thereto^ denies that complainants have any right to any part 
of said estate, they not being the next of kin on the paternal 
side, of said Franklin, as they allege. He further answers, 
that the estate claimed by complainants is subject to distri- 
bution araong the brothers and sisters of Caroline, the wife 
of Amos Hugly, (and who was the daughter of defendant,) 
and that he had distributed it among them, taking from 
them, who are also his children, refunding bonds, to save 
Iiim harmless by reason of said distribution. 

The only point at issue is, whether or not the complain- 
ants arc the next of kin, on the paternal side, of Franklin 
Hugly, and the grounds relied on by the administrator will 
fully appear from the plea filed by him, as follows : 

"That the said Franklin Hugly was the adulterine bastard 
child of Caroline, the wife of Amos Hugly, and was a half- 
breed of the African race, and by reason thereof incapable of 
taking or holding by bequest or otherwise, estate, real or per- 
sonal, under the laws of this State. And further, that the 
estate sought to be distributed by complainants was, by the 
Hi7J of Amos Hugly, bequeathed in equal portions to his 
wife Caroline and said Franklin, and that said Franklin 
i«ing an adulterine bastard, and one-half negro blood, and 
incapable of holding estate, real or personal, the bequest to 
Franklin became void, and the whole of the estate of Amos 
Hugly vested in Caroline Hugly, who was the sole heir-at- 
bw of Amos Hugly." 

The matter relied on in the pleas is also set up in defend- 
aat's answer. " 

The case came on for trial at the August Term, 1860, and 
and complainants proved their relationship to Amos Hugly, 
as stated in their bill, and the relationship of the Sullivans 
to Caroline, the wife of Amos Hugly. They also proved 
the valae of the negroes in controversy and their hire to be 
worth more than $15,000 00. 

BcNJAHrx Zelneb testified : That he once had a conver- 
sation with Amos Hugly when said Amos was very mad 
l>ecau9e the child, Franklin Hugly, was reported to be a 
negro child, and said to witness he believed the child to be 



318 SUPREME COURT OF GEORGIA. 

Sallivan vb. Hagiy et al, 

his ; if he had not, he would make more fuss about it than 
anybody else, and would discard or leave his wife, Caroline; 
was acquainted with the Sullivan &mily, they were of dark 
complexion, d^rk hair ; knew some persons of darker com- 
plexion. Amos Hugly's father had a fair skin ; his wife 
was a fair skinned and very pretty woman, Spencer Sulli- 
van and all the family have high cheek bones and long noses. 

L. B. ALEXA.NDER testified : He knew Amos Hugly but 
not intimately : he was red haired, fair skinned, and had many 
dark freckles on his face of a large size, and on looking on 
the side of his (Amos's) face it made him think of a negro, 
but not that Hugly was himself a negro. 

Defendant read the answers to interrogatories of Wat- 
son A. Crawford and his wife, Margaret Crawford, 
who testified: They lived near Amos Hugly, in Upson 
county. Caroline Hugly gave birth to a male child, Frank- 
lin Hugly, while living in Upson. Mrs. Crawford saw the 
child about fifteen minutes after its birth, Wateon Crawford 
saw it about two weeks aft^r, both say it was the darkest 
child they ever saw born of a white woman. Mrs. Craw- 
ford says, from the dark color of Franklin Hugly, his curly 
black hair and low forehead, she would say he was one-half 
negro. Watson Crawford says that said Franklin was one- 
half of the negro race. They both say that Amos Hugly was 
subject to fits, and that his mind was weak and feeble, and 
that he was easily imposed upon. Watson Crawford says 
that he could have made him give witness his land. This 
witness also says that Amos Hugly told him that whenever 
he went from home he directed a negro man to sleep in the 
house where his wife slept. Both say that Amos Hugly was 
very fair skinned, freckled, and had red hair ; his wife was 
fair skinned, rosy cheeks, handsome faoe, and black hair. 
Franklin was dark, thick skin, flat nose, and curly, black 
hair. Both say that Amos treated Franklin as his son. 

Defendant then read the answers to interrogatories of Dr« 
Dudley W. Hammond, as follows : 

I am a physician of thirty years standing. The wife of 
Amos Hugly, several years after their marriage, gave birth 



ATLANTA, MARCH TERM, 1861. 319 

Sallivan vs. Hugly et al. 

to a male child of dark complexion or color^ and I am of 
the opinion that Baid offspring was a mulatto^ or, in other 
words, half negro— an adnlterine bastard. This child dif- 
fered from the pure white race in several particulars, and in 
order to arrive at this conclasion more clearly, it may be 
proper here to give, in detail, some of the most prominent 
cbaracteristics existing between the white and negro variety 
of the human race. The Caucassian or white variety, as a 
general rule, is characterized by a fair white skin, red cheeks, 
soft, flowing hair, generally curled or waiving, ample broad 
forehead, small, oval and straight face, with features distinct, 
large elevated cranium, narrow and prominent nose, small 
moQtb, projecting chin, etc. Amos Hugly and his wife, and 
their ancestors on either side, as far as I am acquainted, were 
in the main characterized by the above indications of purity. 
The Ethiopian or negro variety, on the other hand, is char- 
acterized by dark skin, black, short woolly hair, compressed 
skull, and elongated anteriorly, forehead low, narrow and 
receding, cheek bones broad and prominent, so as to render 
the upper front teeth oblique, s(f projecting, usually, as to 
ext^d beyond a straight line dropped from the end of the 
D06e to the chin, eyes full, nose broad, and flat, lips (especially 
the upper) thick, facial angle deficient, etc. 

The child of Amos Hugly departed, or was wanting in 

many developments existing in its parents, or the white race, 

and instead, was indelibly impressed with those pertaining to 

the negro variety as just detailed : skin dark, resembling the 

mulatto or half blood, eyes large and prominent, nose short, 

and hair black, the facial angle deficient; in short, the whole 

contour of the child's countenance or appearance would at 

once impress upon the mind that it was the offspring of a 

Begro, and I have no hesitation in stating this to be my 

opinion. I saw the child frequently, and examined it closely, 

for the parpose of ascertaining whether it ^as a white child 

or a mulatto. I know nothing more going to show the 

child to be a mulatto, except some inferential circumstances^ 

viz : Hugly and his wife lived together for many years before 



320 SUPREME CX)URT OF GEORGIA. 

Sulliyau vs, Hagly et cd. 

this child was born^ and several years afterwards, and had 
no other. 

Defendants here offered to read the following from Dr. 
Hammond's answers : " The midwife, Mrs. Cooper, who 
attended Mrs. Huglyj'n her accouchment, pronounced it to be 
a mulatto at its birth," which, on motion of complamants' 
counsel, was rejected by the Court, and defendants excepted; 
and afterwards, defendant, the death of Mrs. Cooper being 
shown, offered to'read the testimony which had been rejected, 
and the Court again, on objection by complainants, rejected 
the same, and defendants excepted. 

Defendants then continued the testimony of Dr. Ham- 
mond: Amos Hugly had a weak, imbecile mind; be was a 
simpleton. I do not kuow how often I saw the child, and 
can't say how old he was when I last saw hfm. I saw Lira 
a short time after his birth. 

The evidence being closed, and the Court having charged 
the jury, (no exception is made to the charge,) they retired 
and found a verdict in fiavor of complainants for §10,710 00. 

Defendants moved for a€iew trial on the grounds — 

1. That the verdict and decree was contrary to law. 

2. That the verdict and decree were contrary to the 
charge of the Court, and that the Court erred in rejecting 
the sayings of Mrs. Cooper. 

3. That the verdict and decree were contrary to the evi- 
dence, contrary to the decided weight of evidence, and with- 
out evidence. 

The Court overruled the motion and refused a new trial, 
and this refusal is the error complained of. 

^Hammond & Son, for plaintiff in error. 

Trippe, Gibsox, for defendants in error. 

By the Court — Lyon, J., delivering the opinion. 

AVhat the midwife, Mrs. Cooper, said of the child, at the 
time of its birth, was hearsay, not evidence, and properly 
rejected. The statement was nothing but an opinion, and it* 



ATLANTA, MARCH TERM, 1861. 321 

Sallivan vs, Hugly et al, 

snstained by her oath would have been of but little weight ; 
without, it was a mere idle declaration. The opinions of 
persons cannot be proven or used as evidence in this way — 
that is, a witness will not be permitted to prove the opinions 
of others on any question. Bobbins vs. Treadway, 2 J. J. 
Marsh, 542. 

There is but one other point in the case, and that is wheth- 
er the verdict is so strongly and decidedly against the weight 
oi the evidence as to require us to send the case back for a 
Dew trial. The only question in issue before the jury was, 
whether the child, Franklin, under whom complainants 
claim, was the legitimate offspring of « Amos Hugly and his 
wife, Caroline. 

At the birth of the child, Amos Hugly, and its mother, 
Caroline, were husband and wife, living together ; had been 
for years preceding, and so continued for years afterward, and 
antil the relation was dissolved by death. Both parents hav- 
ing died, and then the child, and its estate administered by 
the defendant in the Court below, this bill was filed by the 
complainants as its next of kin, On the father's side, as a part 
of the heirs-at-law of said deceased child. The defendant 
resisted their right to a distribution, insisting, that although 
said Franklin was born in the wedlock of the said Amos and 
Ills wife, Caroline, he was not the issue of the said Amos, but 
that he was the ill^itimate ofispring of an adulterous inter- 
course between the said Caroline and a negro. 

On the hearing of that issue, the jury, upon the proofs 
submitted, rendered a verdict in favor of the complainant, 
and the legitimacy of the child. 

2. No question that has been before this Court has been 
more carefully considered and better settled than that in- 
volved in this record — adulterine bastardy ; and the rule, as 
-rcttled, is, "that although the birth of a child in wedlock 
raises a presumption that such child is legitimate, yet that this 
presafsption may be rebutted, both by direct and presump- 
tive evidence; and in arriving at a conclusion upon this sub- 
]ectp the jury may not only take into their consideration proof 
cendiisg ^ show the physical impossibility of the child born 
Vou xxxn — 21. 



822 SUPREME COURT OF GEORGIA. 

Sullivan vs, Hugly et al. 

in wedlock being legitimate, but they may decide the ques* 
tion of paternity by attending to the relative situation of the 
parties^ their habits of life, the evidence of conduct aod 
declarations connected with conduct, and to any indactioos 
which reason suggests/' In oth^ words, that the jury are 
not limited in their inquiries to the " non access" or physi- 
cal impotency of the husband, but that they must act upon 
any evidence that will show the absoluU imposmbUUy of the 
husband's being the father of the wife's child, ^rom whaJbtvet 
cause that impossibilUy might arise, Wright vs. Hicks, 12 
Ga., 158. 8. C, 15 Ga., 160. 

But while the maxim ot pater est qaem nupUce demonstrttnt 
may be thus overturned and defeated, the Courts will not 
allow it to be disturbed upon light, unsatisfactory, or mere 
probable grounds. Resting, as the maxim does, on the solid 
foundation of public utility, the repose of families and the 
tranquillity of marriages, it will be presumed in all its force, 
unless combated by proofs stronger and more convincing. It 
is to be considered as the truth until it is destroyed. 'The 
general presumption will prevail, except a case of plain, natu- 
ral impossibility is shewn. I will not say the improbability 
of his being such, for upon the ground of improbability, 
however strong, I would not venture to proceed." Lord 
EUenborough in The King vs. Luffe, 8 East., 193. 

The evidence relied on by the defendant to overcome the 
presumption of legitimacy, are the opinions of three witness- 
es, Crawford, and his wife Margaret L., and Dr. Hammond. 
Crawford and his wife were near neighbors of Hugly and 
his wife at the birth of the child, Franklin, and from an 
examination at or near that time, they were of the opinion 
that the child was the descendant of a negro — that he wua 
half negro. They say that he was of dark color, curly, black 
hair, and low forehead. Neither of these witne&es are ex- 
perts, or profess any skill in physiology, genealogy or ethnol- 
ogy. They saw that the child was of a very dark skin, had 
a low forehead, with short, curly, black hair, and from thee 
they Infer, as neither the father nor mother possessed any of 
these characteristics, that the child was begotten by a negro 



ATLANTA, MAUCH TERM, 1861. 323 

Snllivan vs, Hngly et al. 



ind not the husband. The testimony of Dr. Hammond is 
:o the same purport, but is much stronger and more import- 
mt, from the fact, that he is a scientific and learned gentle- 
nan on the subject of the races, and examined the child at 
liferent times "closely, for the purpose of ascertaining 
re-hether it was a white child or a mulatto/' He found it to 
ye ^* wanting in many developments existing in its parents,' 
srhen he considered together with their ancestors on either 
Me " as good portraitures of the unadulterated white race/' 
*' and, instead, was indelibly impressed with those pertaining 
io the negro variety," — " skin dark, resembling the mulatto^ 
[>r half blood, eyes* large and prominent, nose short, and hair 
black — ^the facial angle deficient." He concluded that the 
?hild was "the offspring of a negro — in his opinion, an adul- 
terine bastard." If these opinions were infallible, then it 
was an absolute impossibility for the child to have been the 
k'gitimate ofl&pring of Amos Hugly, but they are not. The 
child, notwithstanding these traits or characteristics, might 
have been the child of Amos Hugly. We constantly see 
departures in the negro and white races, from the peculiar 
and natural characteristics of these respective varieties, more 
Brlaring and striking than those pointed out by these witness- 
es, and yet the parents of the descent can not be questioned. 

The defect in the evidence is, that there is not enough of 
concurrent testimony to this point to overcome the legal pre- 
•nimption in favor of the legitimacy. The examinations 
were made when the child was quite young, and before its 
features were fully developed. To sustain the issue, more 
vritnesses should have been brought to the examination. 
The testimony of one physician, learned and skillful, as he 
was, should have been corroborated by that of others skilled 
like himself, and the examination should have continued 
down to his death. Now, after the child was removed with 
its parents to the county of Chattooga, among strangers to 
them and their antecedents, no one seems to be impressed 
with the idea that there is anything strange or peculiar in 
the appearance of the child, or that it was of negro descent. 
At least no witness from that locality is introduced to tes- 



324 SUPREME COURT OP GEORGIA. 

Sullivan vs. Hugly et <U, 

tify to this point, whose testimony supports the issue. One 
witness, Harlon, was sworn, who knew them in Chattooga. 
He not only does not say anything about the child being of 
negro descent or presenting that appearance, but he says he 
knew the child well; saw it frequently; it was always 
treated kindly by them, and both husband and wife claimed 
it as their child. In addition to this, it was in evidence that 
Amos Hugly, the father, had no doubt on the subject, although 
his attention was called directly to the fact; he rejected the 
idea indignantly. This was very strong evidence in support 
of the legal presumption — sufficient of itself to overcome 
the effect of the opinions of the other witnesses — ^for the 
father has an opportunity of judging of the legitimacy of the 
birth of his child that others are not supposed to have. 
Besides all this, there is no evidence of any kind, cither 
directly or indirectly, that the wife was guilty of adultery at 
all, unless it be taken for granted that the child is the 
offspring of a negro, and the adultery be presumed from that 
fact. The evidence is altogether insufficient to destroy the 
presumptions in favor of the legitimacy of the child and the 
innocence of the mother. 

But suppose that* this Court was of the opinion, from the 
evidence, that the child was half negro, and therefore neces- 
sarily an adulterine bastard, which opinion we do not enter- 
tain. What right have we to overturn this verdict ? The 
question is one peculiarly for the jury in cases of this kind, 
and the evidence, to support the charge of bastardy, " must 
be of such facta and circumstances as are sufficient to prove to 
the satisf auction of the jury that the husband could not, by 
the laws of nature, be the father of the child.^' Ra^bury 
Claim of Peerage, 2 Selw., N. P., 709. Shall this or any 
other Court under that rule, in cases like this, say that the 
jury shall be satisfied with this or that kind of evidence; 
especially when the whole charge rests upon the opinions of 
witnesses against the maxim and the deliberately expressed 
declaration of the father that the child was his ? We think 
not. The most that the evidence could amount to is to raise 
a doubt, and whenever that is the case, the finding must be 



ATLANTA, MARCH TERM, 1861. 325 

Jackson and Moye vs. Jackson et al. 

n favor of the innocence of the mother and the presumptions 
)f the law. 
Let the judgment be affirmed. 



Martha. G. Jackson, Executrix, and Thomas W. Mote, 
Executor, plaintiffs in error, vs. Thompson Jackson, 
Samuel Mokgan, et cU., defendants in error. 

1. It Is not error in the presiding Judge to refuse to rule out answers to 
cross interrogatories, when Objected to, on the ground that the answers 
are not fall, especially when the cross interrogatories relate to an im- 
material matter. 

2. The sayings of an ezecutriZ) who is also a legatee under a will, 
uttered before and at the time of making the will, and forming part of 
the res gtstcs, are admissible in evidence against the will. 

3. Pending the trial of a case, the parties agreed that the jury might 
separate for dinner, and at the dinner table a witness for one of the 
parties, expressed an opinion of the case favorable to the party call- 
ing him, and the opinion thus expressed was heard by one of the 
jarors trying the case, who swears that it had no sort of influence on 
bis mind in making the verdict : Ueldj That the verdict should not be 
set aside on that ground. 

4. A testator may have a mind of sufficient sanity for general purposes, 
and of sufEcient soundness and discretion, to regulate his affairs in 
general ; yet, if it be shown that another person has acquired such 
dominion and influence over his mind as to prevent the exercise of 
hisdiscredon in disposing of his property by will, a will made by the 
testator, under the influence of such dominion, will be set aside. 

Issue of deciaavU vel won, tried before the Hon. E. G. 
Cabaniss, at the August Term, 1860, of Monroe Superior 

Court. 

The questions presented for adjudication in this case arise 
out of the following state of facts: 

Ou the 19th of December, 1851, John Jackson made and 
published a will in the presence of O. C. Gibson, Elvers 
Jordan, A. K. Jordan, and Isaac H. Butler, of which the 
following is a copy, to-wit : 



826 SUPREME COURT OP GEORGIA. 

Jackson and Moye vs, Jackson d oL 

" Geoboia — Monroe County : 

''In the name of God, amen I 

" I, John Jackson, of said county of Monroe, in view of 
the uncertainty of life, and the certainty of death, and being 
specially desirous to make disposition of such property as 
rightfully belongs to me, do make and ordain this writing to 
be my last will and testament. Chiefly, I commend my sod 
to the mercy of Him who gave it, and my body to the earth 
in decent Christian burial ; and of my worldly substance I 
make the following disposition : 

''Item. — I hereby direct all my debts paid without delay. 

"Item. — I bequeath to my beloved wife, Martha 6. Jack- 
son, during her natural life, the two lots of land whereon I 
now reside, and to which I have removed only for a few 
days, containing four hundred and five acres, be the same 
more or less ; also, all my stock of cattle, hogs, sheep, cows, 
horses and mules, of every description; also, three negro 
men, Mark, Austin and Green, a young negro fellow named 
Henry, a boy named Frank, about fifteen years old, a nc^ro 
girl named Sarah, a negro woman named Emily, and her 
three children, George, Augustus and Ann, and at the death 
of my said wife I give and bequeath all the property named 
in this item to her and my son, Wiley W. Jackson. 

" Item. — I give and bequeath the sum of $5 00, to each 
of my sons following, viz : William P. Jackson, Thompson 
Jackson, Edward Jackson, Wilkins Jackson, Lewis Jackson, 
and Andrew Jackson. 

" Item. — I give and bequeath to my son, John Jackson* 
one negro woman named Martha, and her child John. 

" Item. — I bequeath to my daughter, Lucy Morgan, wife 
of Samuel Morgan, the sum of $5 00. 

" Item. — I bequeath to my son Wiley W. Jackson, one 
negro fellow by the name of Jim, a negro man by the name 
of Anthony, the following negro women : Dicey, Eachael, 
Cynthia, Charlotte, Eliza, Caroline, Louisa, and Mary and 
her child Fanny ; the following negro boys : Emanuel, Solo- 
mon, Dennis, Jim, Freeman, Joe, Bill, and Gill; and the 



ATLAlfTA, MARCH TERM, 1861. 327 

Jackson and Moye vs. Jackson et oZ. 

following girls: Hannah, Nancy and Harriet; and I also 
give and bequeath to my said [son^ Wiley W. Jackson, the 
sum of $7,000 00 in cash. 

*' Item. — I give and bequeath to my beloved wife, Martha 
G. Jackson, all the balance of debts due me at my death, after 
Inlying said $7,000 00 to my son, Wiley W., and of money, 
for and during her natural life, and at her death, I give the 
same to her, and my son, Wiley W. Jackson. 

"Item. — In case my said son, Wiley W, Jackson, should 
die in minority and without issue, I make this Item as a con- 
dition of, and to, all the property I have given him in this 
will, viz : the same shall go and become, in that event, the 
right and property of my said wife during her natural life, 
and then, at the death of my said wife, (my said son, Wiley 
W,, having died in minority and without issue of his body, 
as aforesaid), I hereby give and bequeath all the property I 
have herein named to my wife for life, as well as that given 
to my son, Wiley W., to the children of my son, John Jack- 
eon, except the money and debts due me, herein given to 
my wife, and that I give to her to dispose of as she *^sees &U 
'*Item. — I hereby nominate and appoint Thomas W- 
Moye my executor, and Martha G. Jackson, my wife, my 
executrix to this my last will and testament.^' 

On the 17th of July, 1858, in the presence of Jackson 
Bush, Elvers Jordan, and Jonas Shivers, John Jackson 
made and published, a codicil to said will, of which the fol- 
lowing is a copy, to-wit : 

"State of Georgia — Monroe County: 

" I, said John Jackson, of said county, do constitute and 
make this writing to be the only codicil to my last will and 
testament, executed the nineteenth day of December, 1851, 
before O. C. Gibson, Elvers Jordan, Ann K. Jordan, and 
Isaac H. Butler as witnesses, and I say this is to be the only 
codicil, because two other codicils have been executed by me, 
one before Elvers Jordan, Jonas Shivers, and Joseph How- 
ard, the 22d of July, 1854, and one before Elvers Jordan, 
John D. Holmes, and Jonas Shivers, J. P., the 1st day of 



328 SUPREME COURT OF GEORGIA. 

Jackson and Moye vs. Jackson ei aL 

May, 1857, and were executed in part, to provide for my 
children, born after said will was executed. 

*^ Item. — I hereby revoke said codicils, but direct that they 
be not destroyed. 

" Item« — I hereby revoke the legacy of $7,000 00 in cash, 
given in my said will, to my said son, Wiley W. Jackson, 
and in lieu thereof, I hereby give and bequeath to all my 
children born, or to be born, of my beloved wife, Martha G. 
Jackson, the sum of $2,500 00, to be subject to the same 
condition as is made of, and to, all the property given in said 
will, to my said son, Wiley W. 

" Item. — I hereby give and bequeath to all my children 
born, and to be born, of my beloved wife, Martha G. Jack- 
son, share and share alike, the whole of the legacies given 
my said son, Wiley W., in said will, except the $7,000 00, 
herein revoked, aiid hereby declare this item to be an altera- 
tion of the legacies in my said will to my said son, Wiley 
W., so as to have his whole brothers and sisters to share 
equally with him. 

" Item. — I give to my beloved wife, Martha G., a lot of 
land, two hundred, two and a half acres, that I bought at 
sheriff's sale, in the year 1854, and that corners with my 
house settlement, and lays East of Thomas W. Moye, in the 
same way I gave her my settlement of land in my will. 

"Item. — I hereby give and bequeath all my provisions on 
hand at my death, of every kind, and the crop growing or 
gathered, or on hand in any way, one half to my wife, and 
the other half to all our children born, or to be born of her, 
the said Martha G., but if necessary for my wife to supply 
herself, stock and negroes, for the year after my death, she to 
have more than half, and the children the balance. 

"Item. — I hereby give to my wife, Martha G., all the in- 
crease that the negroes given her may have had, or may 
hereafter have, and Emily's child, Floyd, now about nineteen 
months old, in the same way I have given her the negroes in 
the will. (Munroe is now dead.) 

"Item. — I hereby give to all my said children, born or to 
be born of my said wife, Martha G. Jackson, two children 



ATLANTA, MARCH TERM, 1861. 329 

Jackson and Moye vs. Jackson et at 

of the woman, Mary, viz : Willis, about five years old, and 
Qrry Ann, a girl, about three years old, and all the increase 
that the negroes given in my will to my son, Wiley W., 
may have had, or may hereafter have, 

"Item — ^I hereby give to my sou, John Jackson, three boys, 
children of Martha, Wade, about four years old, Polk, about 
tvro years of age, and King, about twelve months old, and 
the future increase of said Martha. 

"Item. — ^The Caroline given in my will to my wife is the 
blackest and youngest Caroline. 

"Item. — At the death of ray wife, it is my desire that she 
so dispose of what she may get from ray estate, as to divide 
the same equally among all her and my children, by her, but 
I do not leave it in her discretion as to-one-third, and I here- , 
by give and bequeath to my son, Thomas B. Jackson, one- 
third of what my wife may get of my estate, at the death of 
my wife, Martha G. Jackson. 

"Item. — I hereby re-publish and declare my said will, with 
the alterations herein made, to be my last will and testament, 
with this codicil to the same; and appoint said Thomas W. 
Moye and my wife, Martha 6. Jackson, executor and execu- 
trix, to this my last will and testament and codicil. 

On the 31st day of August, 1859, John Jackson departed 
this life in Monroe county, leaving said will and codicil in 
force. 

When the executor and executrix propounded the will and 
codicil, and proposed to prove the same in solemn form, 
Samuel Morgan and his wife, Lucy Morgan, formerly Lucy 
JackflOD, Thompson Jackson, Lewis Jackson, Andrew Jack- 
son, William P. Jackson, and Edward Jackson, heirs-at-law 
of the testator, interposed a caveat to said will and codicil, 
on the grounds following, that is to say : 

Islw ''That the testator, from extreme old age, imbecility of 
body Asd mind, want of memory, and mental weakness, was 
not cafNible of making said will. 

2Am '^fieeanse said will is unequal, inequitable and unjust 
in ail «f its provisions, and ought to be declared against. 



330 SUPREME COURT OF GEORGIA. 

Jackson and Moye vs. Jackson et al, 

3(1. ''Because said will is not the voluntary act of the mi 
John Jackson, he having been moved unduly, and unduly 
influenced to the making thereof, against his will and desire, 
by the persuasions, menaces, threats, and practices of the 
executrix and executor nominated in said will, and others 
of their family, and the mother of the said Martha 6. 

4th. ''Because said will was procured to be made by the 
said Martha G. Jackson, her mother, and her family, by 
fraud, and by falsely and fraudulently operating upon the 
mind of said Jackson, thereby inducing him to believe that 
his children, these caveators, were his enemies, and were 
laying plans and plots to rob and murder him, whereas, in 
truth and in fact, the said pretences were all without the 
shadow of foundation. 

5th. " Because, at the time of making said will, said testa- 
tor was laboring under the £i1se hallucination and delusion, 
amounting to insanity, that his children, these caveators, were 
his enemies, and were laying plans to strip and rob him of 
his property, whereas, in truth and in fact, these caveators 
are, and will maintain and prove as the Court shall direct, 
that his children were his best friends, and had been most 
dutiful, faithful and humble towards him all their lives." 

At the October adjourned term of the Court of Ordinary 
of Monroe county, the caveat was overruled, and the will 
and codicil set up by the judgment of the Ordinary. 

From this judgment of the Ordinary, the caveators en- 
tered an appeal to the Superior Court. 

When the case was tried on the appeal, there was a great 
number of witnesses sworn, and an unusually large mass of 
testimony adduced on both sides, from all of which it was 
made to appear: that old man Jackson, the testator, com- 
menced life a poor man, working hard at his trade of '' hat- 
ter;" that, although an uneducated man, he had strong 
common sense, keen perceptions, a clear mind, and great in- 
dustry, energy and frugality ; that by his first marri^e he 
was the father of seven sons and one daughter; that whilst 
he labored at his trade, his sons worked in the field, and his 
^daughter cooked and washed at the house; that his sons 



ATLANTA, MARCH TERM, 1861. 331 

Jackson and Moye vs, Jackson et al. 

labored indnstnously and assiduously for their father up to 
their majority, and five years thereafter; tha* they worked 
like slaves, and knew no law but their father's will ; that 
they were uneducated, only two of them being able to write 
their names; that oftentimes they were cheered and encour- 
aged in their incessant toil by the words of their father, of 
" hurrah, boys, what you are now making will all be yours 
some day," and " work while you are young, and when you 
grow old yon will have no need to work," and other expres- 
sions of similar import; that with the exception of one 
slight misunderstanding between the old man and one of the 
bojs, the utmost concord and harmony existed between him 
and his sons up to the time of his second marriage ; that his 
daughter married against his will, and there was a coldness 
between th^u ever thereafter ; that by the industry and fru- 
gality of himself and sons, the old man Jackson amassed an 
estate worth $50,000 00 or $60,000 00; that some time 
about the year 1840, testator's wife died, and in September, 
1846, he married a second time; that his second wife, who 
& the executrix and legatee under the will, was a poor, but 
healthful, handsome girl, of about eighteen years of age at 
the time of the marriage, whilst the testator was a lean, weak, 
feeble old man, of about seventy-five years of age, without 
personal comeliness or attractions ; that his second wife was 
a Miss Moye, whose father was dead, and who, in his life 
time, was the owner of considerable property, which had 
been sold by the sheriff under fi. fas. against him; that the 
place on which testator last resided, in Jones county, had 
been the property of Mrs. Jackson's father, but was sold at 
sheriff^s sale, and bought by testator; that from the time of 
this second marriage (to which his sons were opposed) the 
testator and his sons, all save one, became estranged and 
alieiuited from each other, and the sons seldom visited their 
Other's bonse ; that one of the sons (who afterwards died 
befoul testator) several times threatened to kill his father, 
CQl olT.llis beard, and burn up his house, etc.; that in the 
latteif- part of the year 1851, in very cold weather, the testa- 
tor iM^eA from the county of Jones to the county of Mon- 



332 SUPREME COURT OF GEORGIA. 

■ 

Jackson and Moye vs. Jackson et al. 

,roe, whilst he was in such a feeble state of health that it was 
feared that he -would die before the journey ended ; that the 
place he lefl in the county of JoneS was a good place, com- 
fortably fixed up, with dwelling, out houses, etc., worth 
$5,500 00, whilst the place to which he moved in the county 
of Monroe, was a poor place, upon which the testator could 
scarcely make a support, and which was located within a half 
mile of where old Mrs. Moye, the mother of Mrs. Jackson, 
resided, and near to the Moye family and kinsfolk generally; 
that in a very few days after the arrival of testator at his new 
home, in Monroe county, a Mr. Dumas was sent for, and on 
his arrival, the testator, who was lying upon a pallet before 
the fire, told Dumas that he wanted him to write a will, and 
to write it correctly, that his children said that he could not 
write a will, but that they could break it; that I^umas wrote 
a will, in which all of his children by his first wife, except 
one, was given five dollars each, and the whole of his prop- 
erty given to his son, John, who, he said, had treated him as 
a son should a father, and to his wife, and to his little son, 
Wiley, by his second wife; that the will was executed and 
attested in due form, and that the testator seemed to know 
and understand fully what he was doing at the time ; that 
testator then said, his children had flurried his feelings so 
that he could not enjoy himself in Jones county, and that 
they (his children) had mistreated him and his wife; that a 
few days thereafter. Col. O. C. Gibson was sent for, and went 
to testator's house to write another will, which was done, and 
is the will propounded in this case ; that before writing, and 
during the writing, and after the will was written, testator 
expressed his desire that his son John, and his wife, and bis 
son, Wiley, and gave as a reason therefor, difficulties between 
him and tlie other children, saying that they had neglected 
him and threatened him ; that he seemed anxious that the 
will should be so written as that it could not be broken ; 
that when the will and codicil were written and executed, the 
testator, though in feeble health physically, had abundant 
mental capacity to make a will ; that on one occasion he was 
thrown from a horse, in Jones county, and very seriously 



ATLAlfTA, MARCH TERM 1861. 333 

Jacksoa and Moye vs. Jackson ti al, 

injured, and duriog his coDfinement from the injury, in the 
year 1847, Dr. Charles S, Ridley wrote a will for testator ; 
that Dr. Kidley wrote two wills for him; that when first 
sent for, the testator seemed not to have made up his mind 
00 the subject, and appeared agitated ; that in conversations 
upon the subject, between testator and Dr. Ridley, at which 
Mxs. Jackson and her mother, Mrs. Moye, were present, Mrs. 
Jackson would remind testator of his frequent promises to 
make such a will as she would dictate, saying that she was 
pregnant, and he had promised to make a will to provide for 
herself and offspring ; that Mrs. Moye would, on these occa- 
sions, say yes, Mr. Jackson had made these promises, but 
that she did not believe he would do what he said he would 
do; that when Kidley saw that testator was about making 
awill which in his, Ridley's judgment, was Incompatible with 
justice, he would remonstrate with him, telling him that it 
was not in accordance with what he had previously said, and 
asking him, "what will you do for Billy and Andrew? will 
joanotgivethem something?'' — that testator replied, "Mar- 
tha says Billy is a snake in the grass, and as to Andrew, poor 
fellow, I have nothing against him, he is unable to take care 
of himself;^ that Mrs Jackson would put in by saying, 
''yes, Billy is a snake in the grass," and she did not like to 
hear the name of the Jacksons mentioned ; that an anony- 
mous letter had been written, in which she believed they 
were all concerned, that no one else was mean enough to do 
it but them, that Sam Morgan was a grand rascal, and was 
instramental in writing the letter, and that the Jacksons all 
followed him ; that Mrs. Moye urged testator to fullfil his 
promise, saying poor Martha is in a certain condition, aud 
woald be \eft in a helpless condition, and she and her orphan 
at the mercy of the older children ; that Mrs. Jackson would 
evince great concern for the testator in his presence, rubbing 
her &ce against his, calling him honey, and otherwise caress- 
ing Miii^ aod when not in testator's presence she seemed full 
of l0id^ and hilarity; that when the old man was thrown 
fioAiiifl horse, and brought home in an ox-cart, Mrs. Jack- 
son mid tbe diildren treated him like a dog, allowing him 



334 SUPREME COURT OF GEORGIA. 

Jackson and Moye vs, Jackson et aZ. 

to be brought in that manaer^ when the old man replied^ 
that he was hurt in another fields and not where the boys 
were at the time ; that Mrs. Moje also said that the old man 
ought to be fed on pound cake, that he could eat nothing else. 

The proof also disclosed the fact^ that Mrs. Jackson was 
frequently heard to tell the testator that his sons were laying 
plans and plots to rob him of his property, and to take his ' 
life, and that if he had continued to live in Jones county 
that his life would have been taken by them, and that they 
cared nothing for him. 

The testimony also showed that Mrs. Jackson was kind and 
attentive to the wants of the old man, and waited on him 
very faithfully, and that on several occasions she had been 
heard to request the old man to give the older children a 
part of his property, to which the old man would reply that 
they had not treated him right, and he would give his 
property to the State before they should have it ; that on 
other occasions the testator would say that the law made a 
good enough will for him, and that he did not expect to 
make one ; that he had expressed his regrets that he had 
ever sold out in Jones county, and moved to Monroe; that 
it was the worst day's work he ever did ; thaf on another 
occasion he stated that he had made a will, but that he did 
not like it, and requested Mr. Stallings, with whom he was 
talking, to tell it after his death, and when Stallings replied 
that the Moyes did not like him, (Stallings,) and that he 
did not wish to interfere in the matter, the testator said : 
damn them, I know they donH like you, but I want jou to 
tell it anyhow ; that on another occasion, and immediately 
after Dr. Ridley had written his will, as hereinbefore stated, 
the testator told Ridley that it behooved him to make a will 
compatible with the wishes of his wife, as he* was growing 
old, and weak, and feeble, and it was necessary to do so to 
secure his peace and quiet in the future, and that it was 
necessary to make such a will as she wanted, to secure peace, 
and he wished to live in peace the remainder of his life; 
this was said in answer to Ridley's reference to the repeated 
assertions of the old man to him, that his older childreai bad 



ATLA2n?A, MARCH TERM, 1861. 335 

Jackson and Moye vs, Jackson et al, 

made his property, and that they should have it; that his 
wife then said to testator, that if he did not wish to make 
such a will as she wanted, she did not wish him to make 
aDv; that on another occasion, in conversation with a Mr. 
Hardy, the testator was speaking of how he wished his 
property divided. Hardy said : " Uncle John, you have the 
•reins in your own hands, why don't you fix your business as 
you want it?" to which the testator replied: *' Hardy, I 
have got into the devil's den, and into the hands of other 
people, to be disposed o^ as they please ; my health is such 
that I can't help myself." The proof also showed at the 
time of making the will and codicil, one of the old man's 
^ rod's by his first wife was an imbecile, almost an idiot, and 
iucapable of taking care of himself; that all the balance 
were comparatively poor except one; that his daughter was 
poor and a weakly woman; that the nine orphans of his 
deceased son were very poor; that the youngest of his child- 
ren by his first wife was about thirty-five years old, and the 
oldest near sixty years of age, and that his estate was worth 
from $50,000 to $60,000. 

Pending the trial, counsel for propounders objected to the 
reading, by caveators, of the answers of a witness, Ritchie, 
and Alexander, and Smith, to certain cross interrogatories 
propounded to them as to the mental soundness, and testa- 
mentary capacity of the testator, but the objection was over- 
ruled, and counsel for propounders excepted. 

Counsel for propounders also objected to caveators intro- 
daciog, as evidence, the sayings of Mrs. JacMon, the execu- 
trix and a legatee under the will, uttered at the time of 
makiiig the will, and forming a part of the res gestcBy but the 
Court overruled the objection, admitted the evidence, and 
propottnders excepted. 

Whilst the trial was going on, it was agreed that the jury 
might disperse during the recess of the Court for dinner. 
Dr. Hidley, at the dinner table, and in the presence and hear- 
ing of cne of the jurors impanneled to try the case, remarked 
thait Walkins Jackson, one of the testator's sons, who died 
hefcfim iestalor^ had met him one day, and commenced abusing 



336 SUPREME (X>URT OF GEORGIA. 

Jackson and Moye vs, Jackson et oL 

him; and that he (Ridley) got down and gave him the 
damnedst whipping he ever got, and that he supposed that he 
(Wilkins Jackson) told the other Jackson boys of it, as they 
did not speak to him (Ridley) for a long time, but notwith- 
standing they were not friendly, he (Ridley) thought the 
boys ought to have the property, as they worked for it. 

This conversation was not addressed to the juror, wha 
made affidavit, that though he heard Ridley's remarks, thej 
made no impression on his mind, so far as his action as a 
juror was concerned, and did not i^^uence his verdict in the 
case in the slightest degree. 

Dr. Ridley also came into Court, and being re-introduced as 
a witness, stated, in an apologetic way, what bad occurred at 
the dinner table in the presence of the juror, and the trial 
proceeded. 

The testimony closed, and afler argument to the jury, and 
the I charge of the Court, the jury returned a verdict, "that 
the paper propounded for probate and record, is not the last 
will and testament of John Jackson, deceased.^' 

Counsel for propounders then made a motion, in doe foroi} 
for a new trial in said case on the following grounds: 

1st. Because the Court erred in overruling the objections 
of propounders to the answers of Ritchie, Alexander, and 
Smith, to the cross interrogatories propounded to them, and 
in allowing said answers to be read. 

2d. Because the Court erred in allowing the sayings of 
Martha G. Jackson, uttered before testator's death, to be 
given in evi<itence, against the will, when the same were 
objected to by propounders. 

3d. Because Dr. Charles S. Ridley, one of the witnesso^ 
for caveators, discussed the caveat in favor of the caveator?, 
at the dinner table of the hotel in Forsyth, during the pen- 
dency of the trial of said caveat, in presence and hearing of 
the jurors who were trying said case. 

4th. Because the verdict is against both the law and evi- 
dence of the case. 

5th. Because the verdict is manifestly against the weight 
of the evidence in said cause. 



ATLANTA, MARCH TERM, 1861. 337 

Jackson and Moye V8. Jackson et dL 

After argumeDt had thereon, the presiding Judge over- 
uled the motion for a new trial, and that decision is the 
rror complained of. 

Gibson & Moobe, Pinceabd & P. W. Alexakdeb, for 
)laintifis in error. 

Peepuqs & Cabaniss^ for defendants in error. 

By the Court — ^Lumpkin, J., delivering the opinion. 

The first objection taken in this case is, that the Court 
[rred in permitting the answers of Saphemy Eucker to be 
read to the first cross-interrogatory; the answer of Nancy 
Alexander to the fifth and seventh cross-interrogatories, and 
the answer of Jeremiah Smith to the cross-interrogatories, on 
the groand that the cross-interrogatories specified were not 
fully answered. The objection was not to the reading of 
the iDterrogatories, because the several cross-questions were 
not answered fully, but to the reading of the answers to the 
cross-intern^tories specified, because they were not fully 
answered. In other words, the propounders objected to the 
reading of the answers of the witness to their own questions, 
because they were not fully answered. This is a novel 
^'bjection. But admit that the objection was to the reading 
of the whole interrogatories because the cross-questions were 
not fully answered, we see nothing in the cross-questions 
which would have availed the propounder, however favor- 
ably answered. 

The questions asked were immaterial ; and the answers, if 
given, would have been equally so. They inquired of the 
witnesses their opinion of the testamentaiy capacity of the tes- 
tator, and that is not disputed, 

2d. The next objection is, as to the sayings of Mrs. Jack- 
son, made before and at the time of the making of the will, 
to show the undue influence which she exerted over thei 
inind of the testator. This Court has held the declarations 
^nd admissions competent. 
3d. As to the conduct of Dr. Ridley, who, during the 
Vol. xxxn— 22. 



338 SUPREME COURT OF GEORGIA. 

Jackson and Moye m. Jackson et aL 

trial, made use of some expressions in the hearing of one of 
the jurors, I have this to say : It was consented by the par- 
ties that the jury should separate for dinner, and the saying 
of Dr. Ridley, casually heard by the juror, were not intended 
for him, nor was the witness aware of the juryman's pres- 
ence. The juryman testified that they had no influence on 
his mind, and what is more, the Doctor came into Court and 
stated his inadvertence, and apologized for it; and the cause 
was suffered to proceed without objection. 

4. So much for the skirmishing in the case. We come to 
the main proof. Was there suf&cient evidence of fraud and 
undue influence to justify the jury in pronouncing against 
the will? A great body of evidence has been produced on 
one side, and on the other*. I will state briefly the lav 
principles that govern this case. Presumption is always in 
favor of mental capacity to make a will. Hodge vs. Fisher, 
1 Peters Rep., 163. A party may make use of argument 
and persuasion to procure a will to be made in his own 
favor. Miller vs. Miller, 3 Serg. and Barber, 219. Ex- 
treme old age does not of itself disqualify from making a 
will. Vamalst vs. Hunter, 5 John. Ch. Rep., 158. There 
is yet another ground, which, though it comes short of actual 
force, nor so easy to be proven, yet if it should be made out, 
would certainly destroy the will; that is, if dominion is 
acquired by any person over a mind of sufficient sanity as 
to general purposes, and of sufficient soundness and discre- 
tion as to regulate his affairs in general, yet if such domin- 
ion and influence were acquired over him as to prevent the 
exercise of such discretion, it would be inconsistent with the 
idea of a disposing mind, and perhaps, adds Ch. J. Eyre, 
the most probable instance of such a dominion being acquired, 
is that of an artful woman having taken possession of a 
man, and having subdued him to her purpose. Mountain 
vs. Barnes, 1 Cox, 363. 

The testator began life poor. At the time of his unfortu- J 
nate marriage with Miss Moye he was happy in the society 
of his children by his first wife. He was seventy-five years. 
old. Some of his children were upwards of fifty. They 



ATLANTA, MARCH TERM, 1861. 339 

Jackson and Moye vs, Jackson et <iL 

bad literally worn themselves out in incessant toil. Their 
father's will was law. They knew no othen 

He encouraged them in their daily task, early and late, 
\vet and dry, in winter's cold and summer's heat, with the 
exhortation : ** hurrah, my boys, the property you are work- 
ing for shall be yours ; make money while you are young, 
and when you are old you'll not have to work." They 
were raised in utter ignorance. Some of them could write 
their names mechanically, others could not even do that. 
He met with Martha Moye. She came of a broken down 
family, whose father's property was sold by the law for debt. 
She was young and handsome, of blooming seventeen. They 
were wedded. Bis bony and bent and decrepid form was 
not the attraction. He possessed more ahining qualities. 
He had, in the language of the testimony, ''good land, good 
property, and a good house, and every other luxury which 
was usual in the country." And, I will add, a Strong Box, 
rendered somewhat famous in the criminal history of the 
State, where was hoarded, in solid coin, the hard earnings of 
himself and boys. And now, the whole scene changes. In 
a few months an accident occurred, a fall from a horse, which 
had well nigh proved fatal. A will had to be written, lest 
the fruits of this meretricious match should be lost. '' Mrs. 
Jackson," says one of the witnesses, '' would honey the old 
man up ever so much and evince great concern about his 
situation, in his presence, rubbing her face in his and taking 
on a great deal; but would laugh and seem unconcerned 
behind his back ;" and Mrs. Moye, the mother-in-law, always 
a dangerous confederate in such cases, pursued a similar 
coarse. '' Said he ought to be fed on pound-cake, and could 
cat nothing else." Mrs. Jackson abused the boys vety 
much for sending him home in an ox-cart ; '' said they treated 
him worse than a dog." The old man said he '' was hurt 
at the lower plantation, and not where the boys were." She 
looked scornfully at the boys — would pay them no attention 
nor stay where they were. She would shed tears and mani- 
fest sympathy for the aid man when about him, but when 

^ot in his presctnce was gay and laughing. 



340 SUPREME COURT OF GEORGIA. 

Jackson and Moye vs. Jackson e^ dl. 

Dr. Ridley was sent for to write a will^ and lest everj 
other artifice should fail^ a deception must be practised. 
" Martha would come arouud him^ go to the window and, 
appear to be sick ; she would heave and spit.'' But notwith- 
standing these manifestations of pregnancy, no child was 
born till fourteen months afterwards. Protracted gestation 
of course, occasioned no doubt by the extreme old age of 
the father. But let us introduce Dr. Charles S. Bidley upon 
the stage. The old man at first determined not to make a 
will. Now was the time for Martha to drop the turtle dove 
and assume the dictator. *' I am pr^nant, and you prom- 
ised to make such a will as I would dictate/' is the delicate 
appeal of the young and artless creature. " Yes/' chimed in 
the moiher-Wr-laiDf ''Mr. Jackson made this promise, but she 
did not believe he would keep his word." Dr. Ridley 
remarked to Mr. Jackson that he was about to make a will 
not compatible with justice nor with what he had previously 
said. " What will you do with Billy and Anderson?" He 
wanted to know if he would give them something. '' &far- 
tha says that Billy is a snake in the grass, and not such a 
friend as he pretends to be." " Yes," she replied, " he is a 
snake in the grass." ''As to Anderson/' the old man 
observed, "poor fellow, I have nothing against him, he is 
unable to take care of himself." Anderson was an imbecile, 
and cut off by his father from any portion of an estate worth 
from $50,000 00 to $60 000 00 with $5 00. Can a mother 
forget her sucking child, and her mind be free and sane? 
Can a father, unless enslaved, manacled, " old, weak, feeble/' 
to use his own language to one of the witnesses, " wishing to 
purchase his peace for the residue of his life at any sacrifice/' 
disinherit an idiot son, and cast him penniless upon the 
charity of the world, unless under the influence of fraud or 
undue influence? Upon this single piece of testimony I 
would annul and set aside this will — ^any will— every will. 
And thus the drama opened. Mrs. Jackson would not rest 
satisfied until she had prevailed on the testator to abandon 
his children and home and neighbors, under the apprehen- 
sion that he was endangering his life to remain in Jones 



ATLANTA, MARCH TERM, 1861. 341 

Wjche and wife vs. Green ei ol. 

county, and to remove to a poor place in Munroe countj, 
and settle in a half a mile of her mother, who was surrounded 
by her kin. And now let us glance at the closing scene of 
the tragedy. He had made two wills and three codicils. 
Was he satisfied with them ? He tells Dr. Stallings that he 
wants him to let it be known that they were not his wills. 
Bnt, remonstrates Stallings^ ^' the Moyes don't like me^ I do 
not like to interfere." '^ Damn them^ they don't like me 
either," was his emphatic reply. 

Hardy tried to rouse him from his stupefaction : *' Well, 
John, you have the reius in your own hands, why don't yon 
take the management of your own business?" He said, '^I 
have got into the devil's den and into the hands or other 
people, to be disposed of as they please. My health is such 
that I don't help myself. I desire to die and get out of the 
way." And die he did, as a fool dieth. Talk to me of men 
of strong will like John Jackson ! Sampson was powerless 
in the arms of Delilah, and how often do you see the war- 
rior, the statesman, yield to the influence of their parasites ! 

Let the judgment be affirmed. 



Thomas T. Wychb and wife, plaintifls in error, vs. Thomas 
B. Green, et al., defendants in error. 

1* In a proceeding in equity, all persons having a legal or equitable 
interest in tlie sabject matter of the suit, must be made parties ; and 
if those haying an interest identical with complainant refuse to join 
bim, they must be made defendants. 

2. No Court of Equity should undertake to reform a written instrument, 
conveying title to property, in an essential mutter, without having 
before it all the parties to be affected by the proposed reformation. 

Bill for discovery, relief and injunction, in Upson Superior 
Court, and decision by Judge Cabaniss, at the November 
Term, 1860. 

On the 15th of February, 1817, Batt Wyche, of the 
county of Montgomery, executed a deed of gift conveying 



342 SUPREME COURT OP GEORGIA. 

Wyche and wife vs. Green et al. 

to his *' daughter, Patience Clark Green, (wife of Thomas 
B. Green,) and the issue of her body, four n^ro slaves, 
to-wit : Sally, (now runaway,) Moses, Ellick, and Seely, 
together with all their increase,'' before and after the execu- 
tion of the deed. This deed was recorded in the office of 
the Clerk of the Superior Court, on the 24th of May, 1817, 
and was delivered to Thomas B. Green, the said husband of 
the said Patience Clark Green. Batt Wyche died in the 
county of Montgomery, in the year 1819, and Elias McElvaa 
and George Wyche were appointed administrators of his 
estate. By some means or other the original deed of giAi 
passed from the possession of Thomas B. Green into that of 
the administrators of Batt Wyche, after having been kept by 
said Green for many years. When the deed was executed, 
Patience C. Green had but one child, and at the time of her 
death, which occurred in the year 1848, she had, and left 
surviving her, eight children and four grand-children, to-wit: 
Adeline W. Wyche, wife of Thomas T. Wyche, Amanda F. 
Collier, wife of Robert M. Collier, Ann C. Law, wife of 
Joseph Law, James M. Green, John M. Green, Thomas B. 
Green, Charles Henry Green, and Robert W. Green, and the 
children of Mary Adams, wife of Eleazor Adams, to-wit : 
Sarah, Patience, Elizabeth, and Nancy, whose mother and 
father are both dead. The negroes mentioned in the deed of 
gift, with their increase, amounted to thirty-one in number, 
in the year 1851. 

On the 15th of September, 1851, Thomas T. Wyche, and 
his wife, Adeline W. Wyche, filed their bill in equity, in 
Upson Superior Court, against Thomas B. Green, alleging 
the foregoing facts, and also charging, that before, and at 
the time of executing the deed of gift, it was the wish, pur- 
pose, and intention of the said Batt Wyche, to convey and 
secure the title and use of the negroes mentioned in the 
deed, to the said Patience C. Green, for and during her life- 
time, with remainder in fee simple to her children at her 
death, that is to say, the said Patience C. to have a life 
estate in the negroes, and at her death they should be divi- 
ded, share and share alike, amongst her dhildren. The bill 



ATLANTA, MARCH TERM, 1861. 343 



Wyclie and wife vs. Green et dL 



further alleges^ that the said Batt "Wyche, Patience C. Greeo, 
Thomas B. Green^ and the draftsman of the deed^ thought 
that this purpose was being accomplished by said deed, but 
that by mistake of the said draftsman the deed was drawn 
as it 18; instead of the way it was intended to be drawn, and 
that the deed does not speak the true intention and purpose 
of the parties thereto ; that the said Thomas B. Green receiv- 
ed the negroes and the deed into his possession, understand- 
ing and believing that his wife had only a life estate in the 
negroes, with remainder in fee simple to her children, and 
that the said Patience C. so understood and regarded the 
transaction up to the day of her death. 

The bill also alleges, that Thomas B. Green now wrong- 
fully pretends that said negroes and their increase belong to 
him, and that such mistake as that alleged was ever made in 
drafting the deed, and refuses to deliver up said negroes, to 
be divided amongst the children of the said Patience C. 
Green, according to the wish and intention of the parties. 

The bill prays a reformation of the deed, and injunction 
against the trial of an action of trover pending for the 
negroes, until the further order of the Court, and for general 
relief. 

Pending the aforesaid bill, to-wit, in November, 1860, 
the complainants amended their original bill, by alleging 
that the defendant had combined and confederated with 
James W. Green, John M. Green, Charles H. Green, Robert 
W. Green, Thomas B. Green, Joseph Law and his wife, Ann 
C. Law, the other children of the said Patience C. Green, for 
the purpose of defeating the complainants of their just and 
equal rights in and to said negroes, and that the said Thomas 
B. Green has turned over and delivered a portion of said 
negroes to each of his said confederates, and that complain- 
ants are not able to specify the names, ages, health, condition, 
value, and hire of the negroes retained by the said Thomas 
B. Green, and of those delivered to his said confederates. 

The complainants also amend the prayer of their bill, by 
asking that the said confederates may all be made parties to 
the bill^ and may discover and set forth the names, health, 



344 SUPKEME COURT OF GEORGIA. 

Wyche and Mife v«. Green et al, 

oondition, and value, and valae for hire of the n^roes that 
each have in possession, and how and when thej received 
them, and that a full accounting and division of said negroes 
and their hire may be had and made between the parties 
entitled thereto. 

After the amendment was made, and notice of the same 
duly acknowledged, the defendants demurred to said amend- 
ment upon the ground that there was no equity in said 
amended bill, and that by complainants' own showing, they 
were not entitled to any relief against these defendants. 

After argument had on said demurrer, the Court passed 
an order overruling the amendment, and complainants pros- 
ecute the writ of error in this case to reverse that decision. 

Gibson, Peeples and Cabaioss, for plaintiffs in error. 

P. W. Alexander, J. M. Smith, J. J. Floyd, for de- 
fendants in error. 

By the Oomrt, — Jenkins, J., delivering the opinion. 

Plaintifis in error having filed a bill to have a deed or bill 
of sale reformed, by correcting an error prejudicial to the 
rights of themselves and several others, (the brothers and 
sisters of one of the complainants,) subsequently filed an 
amendment to the original bill, charging fraud and collusion 
between the defendant and the brothers and sisters of said com- 
plainants, and praying that the latter be made parties defend- 
ant, and that the Court will decree, not only a reformation 
of the instrument, but a distribution of the property thereby 
conveyed then in the possession of the original defendant, 
among the complainants and the defendants now sought to 
be made parties. To this amendment defendants demurred, 
and the demurrer having been sustained, plaintiffs exoept. 
The question has been argued on both sides with referenoe to 
the new allegations and additional prayers for relief made in 
the amended bill. But in our view, if the original bill had 
for its single object the reformation of the instrument, in a 
matter seriously affecting the rights of the complainants and 



ATLANTA, MARCH TERM, 1861. 345 

Mann r«. The Macon and Western Railroad Company. 

several others similarly situated^ those others were necessary 
parties, and if not made parties originally, should be after- 
wards brought in. The rule is, that all persons having a 
legal or equitable interest in the subject matter of the suit, 
must be made parties. And if those having an interest iden- 
tical with the complainants refuse to join, they must be made 
defendaots. Courts of equity will entertain bills of equity 
against defendants, having directly opposite interests. 2d 
Story^s Equity, 15-26. It is manifest that the parties now 
sought to be brought in are directly and materially interested 
in the subject matter of the suit. No court of equity should 
undertake to reform a written instrument conveying title to 
property, in an essential matter, without having before it all 
the parties to be affected by the proposed reformation. 

Believing, therefore, that the defendants now sought to be 
made parties should be brought in, to cure a defect in the 
original bill, if for no other reason, we think the Court 
erred in sustaining the demurrer. 

Let the judgment be reversed. 



Asa V. Mann, plaintiff in error, vs. The Macon and 
"Western Railroad Company, defendant in error. 

1. In an action agunst a railroad company for the recovery of damages 
for the death of a negro , occasioned by the cars of the company 
ranning over him on the track, it mast affirmatively appear from 
the testimony, in order to charge the company with the loss, that the 
act was the result of neglect, mismanagement, or carelessness of the 
company or its employees. And in the absence of such proof, a non- 
sait is properly awarded by the Court below. 

2. A direction from the owner to the employer of a slave to keep 
him at a particular place during the night, to be binding, must have 
been a part of the contract of hiring, and that it should be enforced 
by compnlsory confinement, or that he was absent from the place 
indicated by the consent of the employer. 

Case, in Monroe Superior Court. Tried before Judge 
Cabaniss, at the September Term, 1860. 



346 SUPREME COURT OF GEORGIA. 

Mann vs. The Macon and Western Railroad Company. 

This was an action on the case^ brought by Asa Y. ManUi 
against the Macon and Western Railroad Company, to 
recover damages for the loss of a negro man slave, by the 
name of Porapey, which the plaintiff alleges, was hired by 
him to the defendant, as an ordinary railroad hand; that 
the agents and employees of the defendant furnished the 
negro with spirituous liquors, so that he became iutoxicated, 
and in this condition, strayed away from the place he was 
to be kept by the contract of hiring, and laid down on 
the railroad track of said company, and fell asleep, and that 
by the negligent and careless running of the train and 
engine of the company, the negro was run over and killed. 

The declaration also contained a count in trover. 

On the trial, the following state of facts was developed 
by the evidence, to-wit : 

The negro, Pompey, was hired to defendant in the year 
1851, and worked under James Nelms, as overseer, on a 
section of the road of the company extending from Forsyth 
to Smarr's station ; the negro was fed by the plaintiff, and 
came to his master's every Saturday night, to get his food 
for the week. The plaintiff required that his negroes shoold 
stay with the overseer, and be under his control. The 
hands, (Pompey amongst the rest,) stayed in a shanty, about 
one quarter of a mile from the railroad, and about three 
miles from the town of Forsyth. The plaintiff lived in said 
town, and four or five hundred yards from the depot. Nelmsy 
the overseer, gave verbal and written orders to Pitts & 
Smith, who kept a grocery near the depot, to let the n^roes 
on the railroad have liquor when they wanted it. Pompey 
was frequently at said grocery of nights. It was a rule 
for the hands to stay with the overseer. On a moonlight 
night, about the middle of August, 1851, the n^ro was 
lying on or very near to the rail track of said company. The 
engine of the passenger train of the company ran over him 
and killed him, about one hundred and fifty yards below the 
depot in Forsyth. The train was running, at the time it 
killed the negro, in ordinary time and at usual speed. 
The train was stopped, and the body of the negro pulled 



ATLANTA, MARCH TERM, 1861. 347 

Mann V9, The Macon and Western Railroad Company. 

out from under the engine. It did not appear whether the 
whistle was blown or not. There was no headh'ght to the 
engine, as none were used at that time on the road. The 
negro was talkative and lively on the night he was killed, 
but it did not appear, from the testimony, whether he was 
drunk or not, or even whether he had drank any liquor that 
night. One of the witnesses who examined the track the 
next morning, gives it as his opinion, from the blood and 
hair on the cross-ties, that the negro must have been dragged 
fifty yards. One of the witnesses thought that the night 
the negro was killed was neither Saturday nor Sunday night. 
Upon this evidence, the presiding Judge awarded a non- 
suit against the plaintiff, on the ground that the testimony did 
not sustain the plaintiff's cause of action, the action being 
not for negligently running the train so that the negro was 
killed, but for negligently permitting the negro to get drunk, 
stray off, and get killed, there being no evidence that the 
negro had drank any spirituous liquors on the night he was 
killed. 

The writ of error in this case is prosecuted to reverse the 
judgment awarding the non-suit. 

PiKCKARD, for plaintiff in error. 

Peepi.es & Cabaniss, contra. 

By the Court — Lyon, J., delivering the opinion. 

To have entitled the plaintiff to a recovery in this case, it 
was necessary to have shown that the death of the negro was 
caused by the neglect, mismanagement, or carelessness of the 
road, or its employees. Nothing of the kind appears from 
the evidence. The non-suit was therefore properly awarded. 

It was urged, as a reason for the recovery, that Nelms, the 
overseer, having Pompey, the negro killed, in charge, gave a 
grocery keeper, at the Forsyth depot, verbal orders to let the 
negro have liquor. It is unnecessary to inquire whether the 
foad would have been liable had the negro been furnished 
with liquor under such order, and his death caused in conse- 



348 SUPREME COURT OF GEORGIA. 

Sykes vs, McRory and Powers. 

quence^ as there is no evidence that the negro procured, or 
was under the influence of^ liquor at the time. 

2. The only other reason urged for the liability of the 
road was^ that the negro was required to stay at the shanty 
with the overseer^ and that if this requisition had been en- 
forced, and the negro at the place where he ought to have 
been at the time, the accident would not have happened. It 
does not appear that this requirement was a part of the con- 
tract of hiring, or if so, that the road, or its employees, were 
to use compulsory force, such as confinement, to enforce it, 
nor that the departure or absence of the negro from his post 
was by the consent or knowledge of the defendant, which 
would be necessary to authorize a recovery on this ground. 

Let the judgment be affirmed. 



BiCHABD Roe, casual ejector, and Matthew Stkes, tenant, 
etc., plaintifis in error, vs. John Doe, on the demises of 
McRoRY and Powers, defendant in error. 

1. The proviso of the Act of 1857, (Pamphlet Laws, 58,) does not take 
any case oat of the operation of the act, unless the written agreemeDt 
relied on, as specified in the proviso^ emanates from the person to 
whom the grant is alleged to have issued by mistake, or one claiming 
under him. 

2. If the vested right, set^up'to take the case out of the statnte, be not 
traced to, and connected with, the grant alleged to be erroneous, the 
case is not within the purview of the proviso, and under the enacting 
clause, parol evidence is admissible to mistake, and ''to ascertain the 
true grantee." 

8. Proof, that in the district and county wherein the grant recites ^t 
the grantee resided, there was no such person resident at the time when 
names were returned for chances in the particular lottery in question^ 
nor ever before, within the knowledge of witnesses, makes a prima 
facie case for the admission of parol evidence under the act. 

4. In all cases involving title to land, wherein the title of the plaintiff 
depends upon proof of mistake in the grant, and that a person, other 
than the one named therein, is the '* true grantee,'' parol evidence is 
admissible to establish these facts ; but if it appears, when the defend- 
ant's case is submitted, that he deserves title from the grantee, (whose 
name the plaintiff insists was inserted through mistake,) bj some 
writing, executed anterior to the passage of the Act of 1867, ihea the 



ATLANTA, MARCH TERM, 1861. 349 

Sykes v». McRory aud Powers. 

case is brought within the praoisOf and the Court should instmct the 
jury (if they so believe) to disregard the parol evidence introduced by 
the plaintiff to show the mistake in the grant, and rectify it. 
. If in such a case there be proof on one side, that there was no such 
person as the grantee named in the grant, or that the title from such 
grantee, relied on by the opposite party, was forged, and evidence be 
addaced as to the identity of the real grantee, and thereupon the oppo- 
site party submits evidence in rebuttal of these proofs, or any of them, 
the whole matter should be referred to the jury, with full instructions 
as to the law. 

Ejectment, in the Superior Court of Henry county, tried 
before Judge Cabaniss, at the October Term, 1860. 

This Was an action brought by John Doe, on the several 
demises of John McRory, administrator of Rachael McRory, 
deceased, and Clem. Powers, against Richard Roe, casual 
ejector, and Matthew Sykes, tenant in possession, for the re- 
covery of lot land No. 188, in the 12th district of Henry 
county. 

On the trial of the case, the plaintiffs offered in evidence 
a grant from the State of Georgia for the land in dispute, 
which was dated the 21st of November, 1823, and originally 
Ksued to Rachael McRary, widow, of the 13th district, 
Effingham county. 

The name of the grantee had been changed by an order 
of the Governor of Georgia, dated the 18th of December, 
1839, reciting, amongst other things, that it appeared " by 
the affidavits of Walden Griffin, Hester Griffin, and John 
Crawford, that no such person as Rachael McRary did live 
in the district and county aforesaid prior to the land lot- 
tery of 1821, but that Rachael McRory did/' The order 
then directed the grant and records to be corrected, and that 
a copy of the order be annexed to the page of the book in 
the Secretary of State's office, whereon the grant is recorded. 
This execlitive order was submitted to the presiding Judge, 
who, after inspecting the same, admitted the corrected grant 
m evidence, unaccompanied by the executive order, and coun- 
sel for defendant excepted. 

The plaintiffs also offered in evidence the depositions 
of several witnesses, who had long resided in Effingham 



350 SUPREME COURT OF GEORGIA. 

SykeB V8, McBory and Powers. 

county^ and who testified that no such person as Bachael 
McRary ever resided in the 13th district of said county, but 
that Rachael McRory, a widow, did reside there, that they 
knew her well, and that she did give in for a draw in the 
lottery in which the land in dispute was drawn, and that it 
was generally reported and understood that she drew a lot of 
land in Henry county. 

Counsel for defendant objected to this testimony, but the 
Court overruled the objection, and admitted the testimooj, 
and defendant excepted. 

There was a great deal of testimony adduced in the case, 
and several other exceptions taken to the rulings, of the 
presiding Judge pending the trial, and to his charge to the 
jury, but these exceptions were not seriously urged, and not 
discussed by the Court, and therefore not stated here. 

It is believed that the facts here stated are ample for a 
clear understanding of the question decided by this Court 

The jury having returned a verdict for the plaintifis, coun- 
sel for defendant moved for a new trial, on the foUowiDg 
(amongst other) grounds, to- wit : 

1. Because the Court erred in permitting the State of 
Georgia to Rachael McBory to go to the jury, the same hav- 
ing been changed from Rachael McRary, to whom it origi- 
nally issued, to Rachael MoRory, the intestate of the plaintiff, 
the Executive order changing it having been submitted to 
the Court, and not to the jury, the Court deciding that plain- 
tiff's muniment of title must go to the jury. 

2. Because the Court erred in permitting parol testimony 
to be submitted to the jury, to prove that no such person as 
Rachael McRary ever resided in the 13th district of Effing- 
ham county, but that Rachael McRory did reside there, and 
gave in for a draw, and drew the lot in question. 

The presiding Judge overruled the motion, and- refused to 
grant a new trial, and that judgment is the error com- 
plained of. 

L. T. DoYAL and E. W. Beck, for plaintiff in error, 
Wm. Ezzard, for defendant in erron 



ATLANTA, MARCH TERM, 1861. 361 



Sykes vs. McRory and Powers. 



By the Court — Jenkins, J., delivering the opinion. 

The plaintiff in this action (who is defendant in error,) 
claimed title under a grant from the State of Georgia, origi- 
nally issned to a person designated as Rachel McEarj. By 
inspection, it appeared that the name of McRary had been 
changed to McRorj, and the defendant objected, for that rea- 
son^ to the admission of the grant in evidence. 

To account for this alteration, the plaintiff presented to 
the Court an exemplification of an executive order, reciting 
that satisfactory evidence had been adduced that Rachel Mc- 
Rory was the real party entitled to the grant; that the name 
of McRary had been inserted by mistake, and directing that 
the mistake be corrected. The Court then admitted the grant, 
nnaccompanied by the explanatory evidence, and to this coun- 
sel for defendant excepted. 

The rule of law is, that if any ground of suspicion appear 
npon the face of an instrument offered in evidence, and evi- 
dence be offered to remove it, the whole question as to the 
suspicions appearances, and the explanation, should be refer- 
red to the jury, as a matter of fact. 1 Greenleaf, section 564. 
Bat the direction subsequently given to the case by the plain- 
tiff, (he having assumed the burden of proving the mistake 
to the jury, and of showing that the person who drew the 
land in the lottery, and who was the grantee really intended, 
was Rachel McRory,) this exception becomes wholly imma- 
terial. He did not close the case without adducing evidence 
pertinent to the precise question. 

The next exception is, " that the Court admitted parol 
proof of the fact that no such person as Rdchel McRary 
ever lived in the 13th district of Effingham county, (the 
place stated in the grant as the residence of the grantee,) but 
that Rachel McRory did live there, and gave in for a draw 
in the land lottery, and drew the land in dispute." This 
raises the question of the admissibility of parol evidence to 
show, collaterally, a mistake in a grant, and to give it the ef- 
fect it would have had in the absence of such mistake. Upon 



352 SUPREME COURT OF GEORGIA. 

Sykes vs, McRory and Powers. 

this question the case must turn^ and it has been for many 
years a vexed question in Georgia. 

In the numerous lotteries had by authority of law in this 
State, whereby an immense domain has been distribute in 
small parcels to citizens of the State, very many mistakes 
have occurred which, being uncorrected, would work mani- 
fest wrong to individuals. In every form in which a remedy 
for such mistakes has been attempted, our Courts have found 
great embarrassment, until the passage of the Act of 22d 
December, 1857, intended to meet this difficulty. I insert 
here, in full, the first section of that act, being all that ap- 
pertains to the question : 

'^ It is enaded, That in any suit, respecting title to land, in 
any court of law or equity, in this State, it is declared to be 
competent by parol proof on the trial, to ascertain the true 
grantee of the land, and to show what person really drew it, 
notwithstanding any mistake in the issuing of the grant, or 
in taking down or transcribing the name of the drawer. Pro- 
vided, nothing herein contained shall be so construed as to 
apply or be applicable to the legally vested rights of any cit- 
izen of this State or of the United States, in rights vested by 
written agreement of all kinds whatsoever, bearing date an- 
terior to the passage of this act/' 

Looking to the proviao of this act, several questions of 
doubtful solution, in applying tiie enacting clause to cases 
arising, have occurred to us. When the explanatory evi- 
dence in parol is offered by the plaintiff before the defend- 
ant's case is seen, how is the Court to know whether, under 
the proviso, it is admissible? If admitted, and the defend- 
ant subsequently bring his case within the proviso, what 
disposition shall be made of the plaintiff's parol evidence? 
Does the proviso, rightly construed, inhibit the application 
of the enacting clause in all cases wherein the party sought 
to be affected by parol evidence, adduces documentary evi- 
dence " bearing date anterior to the passage of the act,'' and 
purporting to invest him with rights, and if so, how shall it 
be construed? These questions we have carefully consid- 



ATLANTA, MARCH, TERM, 1861. 353 

I ■ 

S^kes vs, McRory and Powers. 

ered, and have adopted the following propositions for their 
solation : 

L The proviso of the Act of 1857 does not take any case 
out of the operation of the act^ unless t^e written agreement 
/relied npon, as specified in the proviso, emanates from the 
person to whom the grant is alleged to have issued by mis- 
tate, orone claiming under him. If the vested right, set 
up to take a case out of the statute, be not traced to and con- 
nected with the grant alleged to be erroneous, the case is 
not within the purview of the proviso ; and under the enact- 
ing claase parol evidence is admissible to show mistake, and 
"to ascertain the true grantee." 

2, Proof that, in the district and county wherein the grant 
recites that the grantee resided, there was no such person 
resident at the time when names were returned for chances 
m the particular lottery in question, nor ever before within 
the knowledge of witnesses, makes a prima fade case for the 
admission of parol evidence, under the act, because such 
proof raises the presumption that no title or written agree- 
ment emanated from the grantee, or could be connected with 
ibe grant. 

3. In all cases involving title to land wherein the title of 

the /^teia^i^ depends upon proof of mistake in the grant, and 

that a person, other than the one named therein, is " the true 

i-^rantee," parol evidence is admissible to establish these facts; 

^at, if it appears, when defendant's case is submitted, that 

he derives title from the grantee, (whose name the plaintiff 

Iri^ists was inserted through mistake,) by some writing ex- 

'r-nted anterior to the passage of the Act of 1867, then the 

>u-e 13 brought within the proviso, and the Court should 

n-truct the jury (if they so believe) to disregard the parol 

• vidence introduced by the plaintiff, to show the mistake in 
Lei grants and to rectify it. 

4. I^ in such a case, there be proof on one side that there 

iS no auch i>erson as the grantee named in the grant, or 

'i \i tbB tiil« from such grantee, relied on by the opposite 

irtv yns forged, and evidence be adduced as to the identity 

• the real grantee ; and thereupon the opposite party submits 

Vol*, xxxn— 23. 



354 SUPREME COURT OF GEORGIA. 



Benton vm, Benson. 



evidence in rebuttal of those proofe, or any of tliem, tbe 
whole matter should be referred to the jury^ with full instruo- 
tions as to the law. 

With this construction of the Act of 1857, (which we 
believe consonant with legislative intent,) there can be little 
difficulty in its application. Applying it to this case, we 
tbink the parol evidence was properly admitted. The other 
exceptions to other rulings of the Court, admitting evidence 
objected to, are not tenable, and indeed were not seriooslj 
urged. Furthermore, we are satisfied that no right of the 
defendant was prejudiced by any refusal of the Coart to 
charge the jury aa requested by him. The only remaining 
question for consideration is, that the Court erred in not 
granting a new trial on the ground that the verdict of the 
jury was without evidence, and against law and evidence. 

It is not incumbent upon us to argue the facts of the case^ 
and we dismiss this ground, and the whole case, with the 
single remark, that, after careful consideration, we are quite 
satisfied with the finding of the jury, and the judgment of 
the Court overruling the motion for a new trial. 

Let the judgment be affirmed. 



Joseph Benton, plaintiff in error, vs. J. C. and J. il. 

Benson, defendants in error. 

1. Under the Attachment A.ct of 1866| claims for propertj levied on by 
attachment, may be made pending the attachment| and in that c&se 
the claim bond mubt be made payable to the plaintiff in attachment 

2. If a claim, interposed pending an attachment, be. dismissed for 
irregularity, such dismissal is no bar to another claim, after judgment} 
on the attachment. 

8. When a claim for property attached is not interposed until aSi 
judgment on the attachment, the claim bond should be made paysbl 
<*> to the sheriff, as in other claim cases. 

Attachment fi, fa, and claim, in Carroll Superior Coo 
decided by Judge D. F. Hammond, at the October Term 
1860. 



ATLANTA, MARCH TERM, 1861. 355 



Benton vs* Benson. 



The facts and questions presented by the record in this 
case, are set out in the opinion of the Court. 

W. W. & H. F. Mebrell, for plaintiff in error. 

Austin, Buchanan, for defendants in error. 

By the Court. — Lyon, J., delivering the opinion. 

An attachment was sued out returnable to the Superior 
Court of Carroll county at the instance of the plaintiffs, J. 
C. & J. W. Benson, against one Alexander R. Morrison, 
which was levied on a printing press, types and fixtures. 
The property, pending the attachment, was claimed by one 
Joseph Benton, and that claim was subsequently dismissed 
by the Court for irregularity. A judgment was rendered on 
the attachment debt, from which an execution issued against 
the property attached that was levied on said property. 
The claimant again interposed his affidavit claiming the 
property, and gave his claim bond payable to the sheriff, etc. 
When this claim cause came before the Superior Court of 
Carroll county for trial, at the October Term, 1860, of that 
Courts the plaintiff in attachment moved to dismiss the 
claim on two grounds. 1st. That a claim for property levied 
on by attachment, under the Attachment Act of 1856, could 
only be made as required by that act, that is, before judg- 
ment on the attachment debt and not afler, and that as such 
a claim had been interposed and dismissed, it was a bar to 
any claim after judgment. 2d. That the claim bond was 
made payable to the sheriff, instead of to the plaintiff in 
in attachment. The Court sustained the motion on both of 
the gronnds, and dismissed the claim, and to that judgment 
the claimant excepted. Was that judgment of the Court 
below dismissing the claims on these grounds, or either of 
either of them, right ? We hold that it was not. 

1. Under the Attachment Act of 1856, claims for property 
levied on by attachment may be made pending the attach- 
meaty and in that case the claim bond must be made payable 
to the plaintiff in attachment. Para. Acts, 1856, pp. 33 and 



356 SUPBEME COURT OF GEORGIA. 

Smith vs. Kiley. 

4 ; but the act does not require that the claim should be mada 
then, or not at all, or if made, and dismissed for irregularity, 
that it shall bar any further claim. On the contrary, sec. 
40, p. 35, of the Act provides that "after the judgment has 
been obtained in any case of attachment, execution shall 
issue as in cases of common law, and the execution shall be 
levied in the same manner as executions issuing at common 
law, and the proceedings in all respects shall be the same, 
except,^' etc., and under this clause we hold, that as a claim 
could be interposed to a levy on an execution issuing from a 
judgment at common law, it may also be interposed and heard 
on a levy made on an execution issuing from a judgment 
on an attachment, and in the same manner, notwithstanding 
a claim may have been interposed and dismissed for irregu- 
larity pending the attachment. If such a claim had been 
tried and a judgment rendered on the merits of the issue, it 
would be diflFerent. 

2. And we hold further, under this act, that when the 
claim for property attached is not interposed until after 
judgment rendered, that the claim bond should be made pay- 
able to the sheriff, as in other claim cases. Cobb, 533. 

Let the judgment be reversed. 



Moses M. Smith, plaintiff in error, vs. S. G. Riley, de- 
fendant in error. 

1. Under the Act of 1856, giving a common law remedy against trus- 
tees and trust estates, the process of attachment does not lie against 
a tvustec, as sach. 

Attachment, in Campbell Superior Court, decided by Hon. 
Dennis F. Hammond, at August Term, 1860. 

Moses M. Smith sued out process of attachment, predicated 
upon an affidavit, "that S. G. 'Riley, trustee for Lucinda 
Riley, and her children," was justly indebted to him in the 
sum of $860 00, and that said S, G. Riley then resided out 



ATLANTA, MARCH TERM, 1861. 357 

Smith vs. Riley. 

of the State of Georgia, so that the ordinary process of law 
coifld not be served on him. 

The attachment was levied on lot of land No. 30, in the 
3d district of Campbell county, with a saw mill thereon, a 
ht of lumber, twenty-two head of hogs, a sorrel horse, and a 
carding machine. 

When the case was called, the presiding Judge, on motion 
of counsel for defendant, dismissed the attachment, on the 
ground, that a levy upon trust property did not give juris- 
diction of the trustee upon a personal indebtedness, and that 
the trustee absconding, etc., did not subject the trust prop- 
erty to attachment. This decision is the error alleged. 

Latham, for plaintiff in error. 

W. M. Butt, for defendant in error. 

By ihe Court. — Lumkin, J., delivering the opinion. 

This record reminds me of the famous controversy as to 
the number of children the wife of John Rogers, the martyr, 
had. If the nine that followed their mother to the stake 
was exclusive of the one at the breast, why, then, she had 
ten, if inclusive, nine. 

If this attachment is against Riley, as trustee, under the 
Act of 1856, giving a common law remedy against trustees, 
then it will not He. The statute does not provide for attach- 
ments. Indeed, its terms would necessarily exclude this pro- 
cess. If, on the other hand, it is an attachment against 
S. G. Riley, in his individual character, and although ad- 
mitted in the argument to be the other way, — and I am 
strongly inclined to think the pleader so intended it — then the 
proceedings Rhould be sustained. 

One of the best modes of testing this question would be 
to inquire on whose property the levy was made ? Was it 
the individual property of S. G. Riley, or the trust estate of 
Laotnda Riley and her children, in S. G. Riley's hands? If 
the IsKer, the J)roceeding is illegal and void. If the former. 



358 SUPREME COURT OF GEORGIA. 



Woodruff w. Woodruff et oZ. 



although there is much confusion in the record, I do not see 
but that the attachment may be sustained. 

It was this that produced the diflSculty, I apprehend^ in 
the Court below, and which creates the diflBculty in this 

■ 

Court. The very idea of suing out an attachment against a 
Crus tee, because he resides out of the State, is an absurdity. 
It cannot be done, and this is all we decide. 
Let the judgment be affirmed. 



Frakces Woodruff, plaintiff in error, vs. James M. 
Woodruff, et al., defendants in error. 

1. Where a testator, by his will, directs that certain property bequeathed 
by him shall be divided into four shares, and further directs, that one 
of these shares shall be vested in, and become the property of J. N. 
W., in trust for testator* s daughter, F. W., and " her heirs bom and 
tobeboni'^ : Heldf that the bequest vested in the daughter a life 
estate in the property, with remainder to her children, whensoever 
born. 

Bill in equity, in Newton Superior Court, and decision on 
demurrer, by Judge E. G. Cabaniss, at Chambers, on the 
18th of October, 1860. 

James M. Woodruff, George W. Woodruff, and Reuben 
T. Woodruff, exhibited their bill in equity, returnable to the 
September Term, 1860, of Newton Superior Court, against 
their mother, Frances Woodruff, alleging that James Rose- 
berr}^, the grand father of the complainants, died in said 
county of Newton, leaving in full force a will, which was duly 
proved and recorded ; that in and by said will the testator, 
after some specific legacies directed that certain property 
specified in the will, and also described in complainauts' 
bill, should be divided into four equal shares, and that 
one of the four shares should be " vested in, and become the 
property of, John N. Williamson, in trust for his daughter, 
Frances Woodruff, and her heirs, born and to be born;" that 
in the division of the property bequeathed, certain negroes 



ATLANTA, MARCH TERM, 1861. 359 

Woodruff vs. Woodruff et aL 

were allotted to the said Frances Woodruff, which, with their 
iocrease, she now has in possession, and threatens to carry 
the said negroes out of said county of Newton. 

The complainants daioi an interest in the negroes, either 
as joint tenants with their mother^ the said Frances Wood- 
raff, or as remainder-men^ after the termination of her life 
estate in the property, and they pray that an equal division 
of the property may be made between all the joint tenants, 
so far as to ascertain, and set apart the distributive share to 
which each is entitled, or, in the event it should be held, that 
theirs is an interest in remainder, that the said Frances Wood- 
ruff may be decreed to give bond, with sureties resident in 
Newton county, for the forthcoming of said negroes, to be 
delivered to the remainder-men at the death of the said 
Frances. 

The defendant set up a demurrer to the bill, insisting that 
the bequest in the will vested an absolute estate in the ne- 
groes, in herself, and that complainants had no interest in 
tiiem, either as joint tenants or remainder-men; and insisting 
also that if it should be held th^t complainants did have an 
interest in the property, they ought to be compelled to elect, 
either to claim as joint tenants or as remainder-men. 

Upon hearing argument for and against the demurrer, the 
presiding Judge overruled .the same, and the plaintiff in 
error seeks a reversal of that decision before this Court. 

CL.ARK & Lamar, for plaintiff in error. 

Floyd, Stakcell & Glass, contra. 

By the Court, — Jenkins, J., delivering the opinion. 

The questions for the consideration of the Court in this 
case are, whether, under the will of James Roseberry, the 
defendant took any- interest in certain property now in the 
possession of their mother, the plaintiff in error, and if so^ 
what interest ? 

The bequest was of certain slaves " to John N. William- 
BOtkf in trost for my daughter, Frances Woodruff, and her 
bein, bom and to be born.'' 



360 SUPREME COURT OF GEORGIA 

Woodruff vs. Woodruff et aL 

It is conceded that at the time of the making of said tes- 
tament the defendants in error were in esse, and that since 
that time other children have been born to Frances Wood- 
ruff. 

For the plaintiff in error, it is insisted that the word 
"heirs" is to be considered as a word of limitation, not- 
withstanding the superadded words " born or to be born.'' 
These words, it is said, do not at all vary the legal significa- 
tion of the word " heirs," which without them, in this con- 
nection would vest the entire interest in Francis Woodruff. 
It is the duty of Courts in construing wills, if possible, to 
give effect to every word used by testators. The first inquiry, 
then, is, whether the superadded words "bom or to be 
born" give expression to any idea in the testator's mind, 
which, without the use of them, would have slumbered. If 
they do, and by any reasonable interpretation we can ascer- 
tain that idea, we have no right to reject the words which 
are its exponents. If he meant nothing by the words " bora 
and to be born," then he simply meant to give to Frances, 
at his death, such interest in his property as he then had — 
the absolute interest. This interest he meant she should 
be at liberty to alien by deed, or by will, and if she should 
die without having disposed of it in either manner, he meant 
that it should go, not by any act of his, but by operation of 
law, to such persons as might be her heirs-at-law. To effect 
this object, it would have sufficed to stop at the word heirs. 
The fact that he did not so stop, would indicate tliat he bad 
something to say relative to those heirs. If the superadded 
words, taken in connection with the word heirs, point to a 
class of persons distinct from all others, then they mean 
something; they convert the word "heirs" into a word of 
purchase. If by " heirs " he meant h^irs general — meant 
only to indicate the quality of interest his daughter was to 
take in the slaves — of what consequence was it whether or 
not those persons who would, at his death, be her heirs-at- 
law, were then " born or to be born ? " 

It is only on the supposition that he meant to give her a 
limited interest in the property, and to limit h, after that, to 



ATLA2JTA, MARCH TERM, 1861. 361 

Woodruff vs. Woodruff et al. 

certain other persons then in his mind^ that it could be a 
question of importance whether those persons so to take in 
the future were all in life at the execution of his will. The 
inference seems clear that he had a class of persons in his 
mind, at the moment, and the next question is, whether that 
class of persons can be ascertained. To answer the descrip- 
tion they must be persons, some of whom were then in esse, 
others in passe, all of whom surviving her would, at her 
death, stand in the same relation to her — ^would be her heirs- 
at-law, to the exclusion of all others — were there such. 
The fact is, when the will was published she had children; 
the possibility was, she might have more. The children she 
then bad, and any she might afterwards have, surviving her, 
would be her heirs; would constitute a class of persons from 
which no one of them could be excluded, and from which 
all other persons would be excluded. They answer the 
description, which no other person could satisfy. They are 
children of Frances, " born and to be born." Would it not 
he wilfully closing the judicial mind against testamentary 
intention, to hold that he did not mean distinctly to provide, 
by his own act, for her children ? The question still remains, 
what interest did they take ? Are they to be regarded as 
tenants-in-common with their mother, or did she take a less 
estate, with remainder to them ? We hold the latter opin- 
ion. Whilst the superadded words give to the word "heirs" 
the significance of children, we are not entirely to lose sight 
of its proper meaning. To give full effect to the words 
" heirs, born or to be born," in this case, we must under- 
stand " children being heirs, living at the date of the will 
and thereafter to be born. " Inasmuch as, " nemo hceres 
est vivenlis," the class of persons to take after Frances 
Woodruff, must be ppstponed until her death, w^e there- 
fore construe the bequest to vest in her a life estate, with 
remainder to her children, whensoever born. The case of 
Goss and wife vs. Eberhart, administrator, 29 Ga. Rep., 545, 
sustains this view. We think, therefore, that the demurrer 
was properly overruled. 
Let the judgment be affirmed. 



362 SUPREME COURT OF GEORGU, 

York vs. Clopton et al. 



JosiAH C. York, plaintiff in error, vs. David Clopton, 

et al., defendants in error. 

1. Whea a party has once had an opportunitj of being heard, and 
neglects to assert his caase until the jadgment of the Coart has 
been made, settling the rights of the parties, he must abide the coose- 
quences of his neglect. A Court of Equity cannot relieve him there- 
from, even when the judgment is manifestly wrong. 

2. The ignorance of the sheriff as to what was his duty, under the cir- 
cumstances, cannot protect him from liability for the neglect to per- 
form that duty. Ignorance of the law excuses no man, least of all. a 
sheriff. 

Bill in equity, and application for an injunction, in Folk 
Superior Court, decided by Judge Dennis F. Hammoxd, at 
Chambers, on the 22d of November, 1860. 

Several writs o{ fieri facias , issued from a Justice's Court 
of Paulding county, some in favor of David Clopton, some 
in favor of Ephraim Thompson, and some in favor of other 
persons, against Berrien Williams, were levied by A. B. 
Davidson, a constable, upon certain negro slaves, as the 
property of the defendant, Williams, and by said constable 
the fi. faa.f and the property levied on, w^ere returned to 
Josiah C. York, the sheriff of Polk county, for sale accord- 
ing to law. On the day of sale, Edmond Williams and Wil- 
liam W. Williams, as executors of old Mrs. Williams, filed 
a claim to the negroes in due form of law. The fi. /a3,, 
with the levy thereon, and the claim, were returned, by 
York, to the Superior Court of the county of Paulding, to 
be there tried. Subsequently, the levy on the fi, fas. was 
dismissed, by order of the plaintiffs' attorney, for irregu- 
larity, and due entry of such dismissal made on the fi^ fiv^. 

On the 8th day of March, 1860, the fi. fas. were re-levied, 
by the conntable, upon the same property which was then in 
the custody of York, the sheriff, and the constable exhibited 
to York the written instructions of the attorney of the plain- 
tiffs, directing the constable to re-levy on the uegroes, 
and take them out of York's custody, and turn them over 
to a third party. York refused to surrender the negroes. 



ATLANTA, MARCH TERM, 1861. 363 

York vs, Clopton et al. 

Davidson, the constable, then gave the re-levied fi. fas. to 
York, the sheriff, who held them and the property without 
advertising or selling said negroes, or otherwise disposing of 
the same. 

On the first day of May, 1860, a rule was served upon 
York, reciting that he had had ten fi. fas.^ in favor of 
David Clopton, and three^./a«. in favor of Ephraim Thomp- 
son, and other ^. /a«., all issued from a Justice's Coilrt of 
Paulding county, against Berrien Williams, in his hands, 
with property levied on sufficient to satisfy them, and re- 
tnrned to him long enough before that time for him to have 
made the money, and directing him to appear at Polk Supe- 
perior Court, then in session, and show cause on the next 
morning, or so soon as counsel could be heard, why he should 
not pay to plaintiff's attorney the sum due on all of said 
/./a«. The rule also directed him to bring the^./ow. into 
Court, with his actings and doings thereon. 

Od the 2d day of May, 1860, York made, through his 
counsel, a verbal answer to the rule, which was not sworn to, 
and the Court deeming the answer insufficient, granted a rule 
absolute, directing the sheriff to pay to Irwin & Lester, the 
attorneys of the plaintiffs, the principal and interest due on 
the fi. fas. The rule absolute set out by name oil the^./cw., 
Loth those specified in the rule nm. by name, and those desig- 
nated ** other fi. fas. " therein, giving the principal, interest 
and co6t due on them separately. 

At the October Term, 1860, of Polk Superior Court, 
counsel for the plaintiffs in the fi. fas., moved for and ob- 
tained an attachment for a contempt against the said York, 
and placed the same in the hands of John Peek, the coroner 
of Polk county, to be executed and enforced. 

Between the time of obtaining the rule absolute and the 
attachment, York advertised the negroes for sale, but the 
execntors of Mrs. Williams again interposed a claim, which 
was returned to Paulding Superior Court, and is still pend- 
ing. Berrien Williams resides out of the State, and is in- 
solvent; 

Upoii this state of facts, and on the grounds stated in the 



364 SUPREME COURT OF GEORGIA. 

York vs, Clopton et al. 

opinion of the Court, York exhibited his bill, praying an 
injunction against the enforcement of ther attachment, which 
injunction was refused by Judge Hammond, and it is to re- 
verse that decision that the writ of error is prosecuted in this 
case. 

Fielder & Bhoyles, Buchanan, for plaintiflFs in error. 

Irwin & Lester, contra. 

' By the Court. — Lyon, J., delivering the opinion. • 

This was an application, by bill in equity, for the writ of 
injunction to enjoin the collection or prosecution of an attach- 
ment issuing out of, and founded on, a rule absolute in the 
Superior Court of Polk county, against Josiah York, as 
sheriiF of that county, in favor of David Clopton and others, 
as plaintiffs, in certain executions against one Berrien Wil- 
liams. The application was based on several grounds set out 
in the bill, all of which I will notice in their proper order 
hereafter, and the injunction refused on all the grounds. 
This refusal is the error complained of in this record, and 
forms the subject for present consideration. We agree with 
the Court below, that the complainant failed to make such a 
case as would entitle him to the relief prayed for, and that 
the injunction was properly refused. The first ground 
amounts substantially to this, that after the claim of the 
property levied on by the executors of Mrs. Williams, to- 
gether with the executions, had been returned by him to the 
Superior Court of Paulding county, for trial, he did not 
know that he was authorized to proceed with the advertise- 
ment and sale of the negroes, upon the return of the execu- 
tions, the dismissal of the old levy for irregularity, the entry 
of a new levy on the same property, until he was advised 
that the first, or old claim, had been properly disposed of bv 
the Court, and believing that he could not do so, in the ab- 
sence of any notice or advice to the contrary, he held the 
executions for the purpose of returning the same to the next 
term of Paulding Superior Court for the trial of the claim, 



ATLANTA, MARCH TERM, 1861. 365 

York V8. Clopton et aL 

\nthout advertisiDg or selling until Court came on in Polk 

GOODty, when this rule was moved against him, to m hich he 

made a verbal showing, relying on some ground not included 

in the bill, that his counsel thought a sufficient showing 

to the rale. The Court, on the hearing, had overruled the 

showing, and made the rule absolute, from which the attach- 

ioeot issued, that he now, upon this and other grounds, seeks 

to avoid. We might dispose of this, and all other grounds 

ia the bill, that existed at or anterior to the judgment of the 

Court on the rule, by the reply, that it was the duty of the 

sheriff, at the hearing of the rule, of which he had notice, to 

have then made and insisted upon all the grounds of defense 

that then existed to the rule, as it was his duty to do, and as 

he did not; that it is now too late to insist uf>on them by this 

hill. 1. When a party has once had an opportunity of being 

heard^ and neglects to do so until the judgment of the Court 

has been made, settling the rights of the parties, he must 

abide the consequences of his neglect. A court of equity 

cannot relieve him therefrom, even when the judgment is 

manifestly wrong. Pollock vs. Gilbert, 16 Ga., 401. But as 

it is not necessary that w^e should put the decision on this 

^jund, we will meet and dispose of the grounds of the bill 

on their merits. The gist of the first ground is, that the 

iheriS did not advertise and sell the property before the rule 

^vais moved against him, although he had plenty of time to 

^ave done so, because he did not know that it was his duty. 

lie does not deny now but it was his duty, for it is clear that 

it was. The dismissal of the levy, whether by the act of the 

l^iTij or the Court, disposed of the claim, and a new levy 

Made the filing of a new claim necessary, or a sale of the prop- 

vrty. 2. The ignorance of the sheriff of what was his duty 

loder the circumstances, cannot protect him from liability 

:*ur the Delect to perform that duty. Ignorance of the law 

xcQses no man, least of all a sheriff — for having undertaken 

o perform the duties of his office, he must know and per- 

l*nn tbem at his peril. 3. A second ground for relief, made 

t the bQl and insisted on in the argument, is that several 

xecutiooi^ to the amount of $185 00, are embraced in the 



36^ SUPREAfE COURT OF GEORGIA. 

» 

York V8. 01 op ton et oL 

rule absolute^ which were not included in the rule nisi, and 
upon which he was not called upon to answer. If this be 
true, that the rule was made absolute as to executions that were 
not in his hands, and levied upon the property, and to which 
his answer did not applj, the rule cannot be enforced against 
him as to those executions, but it is not necessary for him to 
come into a court of equity to get relief on that ground. A 
motion before the Court would afford him as full relief as a 
decree in equity ; but I apprehend if the difficulty grows out 
of a mere imperfect description of the executions in the state- 
ment thereof, while all were alike in his hands at the same 
time, and all stood on the same footing, that the objection 
would not amount to much. 4. The next and last ground 
relied on in the bill, is that since the rule was made absolute, 
a claim has been interposed to the property, which is still 
pending, and undisposed of in the Superior Court of Pauld- 
ing county. This claim was filed intermediate the rule ab- 
solute and the application, by the plaintiffs therein for the 
attachment. Against the allowance of the injunction on this 
ground, there are two sufficient reasons. First, it ought to 
have been shown against the issuing of the attachment — that 
is, it ought to have been relied on as a defense before the 
Court, on the application 'for the attachment. S^x>ndly, to 
have been good as a reason why the attachment should not 
be collected or prosecuted at any time after judgment of the 
Court on the rule, it should have been made to appear 
affirmatively that the property was not subject to the execu- 
tions, and after the judgment, this could only appear by a 
judgment of the Court declaring the property not to be 8ub- 
ject. 

Let the judgment be affirmed. 



ATLANTA, MARCH TERM, 1861. 367 

Hudgtns V8, Crow et ah 

BiCHARD RoEy casual ejector, and J. B. Hudgixs, tenant- 
iD-posscdsion, and another, plaintiffs in error, vs. John 
Doe, on the demise of Harrison Crow et al., defendants 
in error. 

1. Where there is a succession of crops made on land every year, the 
ioterval which necessarily elapses, between the time of one tenant 
moving off, and another moving on, the premises, will not work a for* 
feiture of the benefit of the statute of limitations, or break the contin- 
uity of an adverse possession. 

2. A verdict which is against the law and evidence in the case, will Jt)e 
^et aside, and a new trial awarded. 

Ejectment, in Harralson Superior Court, tried before Judge ' 
Dfixxis F. Hammond, at the October Term, 1860. 

This was an action brought by John Doe, on the demises 
of Harrison Crow and Edward Grisbam, against Richard 
Roe, casual ejector, and James B. Hudgins, tenant-in-posses- 
sion, for the recovery of lot of land No. 195, in the 7th dis- 
trict of said county of Harralson. The suit was commenced 
on 26th September, 1859. 

The defendant met the action with pleas of the general 
issue, and the statute of limitations. 

Pending the action, Elihu M. Williams was made co- 
defendant. 

On the trial, the plaintiff proved tlie locus, and that James 

B. Hudgins went into possession of the land in dispute in 

the month of May, 1859, and was occupying the same when 

the suit was brought as the tenant of Elihu M. Wilh'ams ; 

that "Williams bought the land from Albert G. Story, and 

took his bond for titles, and by virtue thereof, entered upon 

the land the first of the year 1851 or 1852, built some houses, 

cleared twenty acres of the land, and lived thereon, claiming 

it ad his own until 1855, when he sold it to a man by the 

name of Webb, who went upon the land before Williams 

moved off, and lived on it until the last of the year 1857 ; 

that Williams took the land back from Webb, and rented it 

to a man l^ the name of Nicks, who lived on and cultivated 

the land in 1858, and left it in the month of November of 



368 SUPREME COURT OF GEORGIA. • 

Hudgins vs. Crow et at, 

that year; that there might have been as much as t^'o or 
three months between the time that Webb moved off, and 
Nicks moved on the land, but that WiHiams, and those 
claiming under him, had made crops on the land every year 
from the time he first entered upon it. 

The plaintiff then introduced a grant from the State of 
Georgia, to John H. Goolsby, of Brown's district, Dekalb 
county— a deed from Goolsby to Harrison Crow, dated 1st of 
January, 1830, and recorded 1st December, 1831, for the 
land in dispute. 

The plaintiff offered in evidence a deed from Crow to Ed- 
ward Grisham, dated 20th December, 1854, which being 
objected to, on the ground that it was made pending an 
adverse possession of the land, and therefore void, was 
excluded by thq Court, 

Plaintiff then offered in evidence the record of an action 
of complaint for the land in dispute, brought by Edward 
Grisham, against W. C. Webb and Elihu M. Williams, and 
which was commenced in Harralson Superior Court on the 
22d May, 1855, and judgment of non-suit awarded at April 
Term, 1859, the case carried to the Supreme Court, and 
judgment aflBrmed at August Term, 1859, and remitter 
returned, and made the judgment of Harralson Superior 
Court, at October Term, 1860. Counsel for defendant ob- 
jected to the introduction of the record on the ground, 
that as the deed to Grisham had been ruled out, and 
no recovery could be had on the demise from him, he 
was not a party to this action of ejectment, and that the 
action of complaint, and the action of ejectment, were not, 
therefore, between the same parties, but the Court overmleil 
the objection, and admitted the record in evidence. Plaintiff 
then rested his case. 

The defendant then proved the existence of an original 
fi. fa., issued from a Justice's Court of DeKalb county, iu 
favor of James Simpson, against John H. Goolsby, and that 
extensive and diligent search had been made to find the said 
Ji. fa., and the judgment from which it issued, in all the 
places and oflSces where the same would likely be found, bat 



ATLANTA, I^IARCH TERM, 1861. 369 

Hadgins vs. Grow et ciL 

bat the search was unavailing, and resulted in a failure to 
ind the JL feu or the judgment; that John H. Goolsby re- 
ided in the county of DeKalb in the years 1826, 1827, 1828, 
Lod 1829, and that the Justice's Court dockets for said years, 
Q the districts wherein he resided, were lost, and could not 
3e found ; that in the latter part of 1829, Groolsby moved 
from DeKalb to Merriwether county, and from thence to Che- 
rokee county, Alabama. The defendant then read in evidence a 
Jeed for the land from Giles S. Boggus, sheriff of Carrol 
county, to James Simpson, dated 20th of January, 1834, and 
recorded SOth of January, 1834, reciting a seizure of the 
land on the 5th of May, 1832, by virtue of a writ of fieri facmSf 
issued from a Justice's Court of DeKalb county, in favor of 
James Simpson, against John H. Goolsby, and a due adver- 
tisement and sale of the same, according to law, to the said 
Simpson, who was the best and highest bidder. This deed 
was accompanied by the testimony of Boggus himself, veri- 
fying the facts recited in the deed, and giving it as his best 
recollection that the fi. fa. was returned to Simpson after the 
sale of the land. ^ 

The defendant next read in evidence a deed from W. W. 
and A. N. Simpson, administrators of James Simpson, de- 
ceased, to Josiah Groggan8,for the land in dispute, dated the 5th 
August, 1854, a deed from Goggans to Elijah Cook, dated 4th 
December, 1850, a deed from Cook to Albert G. Story, dated 
8th October, 1853, and a deed from Story to Elihu M. Wil- 
liams, dated 9th April, 1854. The defendant rested his case, 
afler adducing additional proof that Goolsby resided ip DeKalb 
up to the last of the year 1829, and did not reside there after 
that, and as to the continuous and adverse possession of the 
land by Williams. 

After the testimony and argiinieiit had closed, and the 
Court had charged the-jury, as hureinafler stated, the jury 
returned a verdict in &vor of the plaintiff for the premises 
in dispute. 

Counsel then moved in due form for a new trial, on the 
grounds: 
1. Because the Court erred in admitting in evidence the 
Vol, xxxn — 24. 



370 SUPREME COURT OF GEORGIA. 

Hadgins V8, Crow et al. 

record of the action of complaint in favor of Grisfaam against 
Webb and Williams, as hereinbefore stated. 

2. Because the Court erred in refusing to charge, when 
requested to do so, that if the jury believed that Goolsby 
lived in DeKalb countj, and lefl there, and moved to another 
county before he made the deed to Crow, and never lived in 
DeKalb county after that time, the presumption of law, in 
such case, would be that the fi, fa, was older than plaintiff's 
deed, and that the existence and loss of the fi, fa, being 
proved, the- law presumes that there was a judgment, and 
that the Court rendering it had jurisdiction ; that if the de- 
fendant, and those claiming under him, held possession of 
the land, and made a crop on it every year for seven years, 
that an interval of two or three months between one tenant 
going out and another coming in, does not amount to such an 
interruption of the possession as to defeat the statute of limi- 
tations. 

3. Because the Court erred in charging the jury, that if 
the defendant moved off the land for one single day, whether 
he intended to return or not, the statute of limitations 
stopped at that point, and only commenced to run from his 
return to the land, and he must have held it seven years 
from that time, to entitle him to protection under the statute; 
that there is no legal way of proving the contents of ikfLfa, 
or other paper, but by producing the evidence of a person 
who has seen the fi.fa, or other paper, and that no evidence 
of an inferior degree will be sufficient to establish the con- 
tents thereof. 

4. Because the jury found contrary to law, contrary to 
evidence, and contrary to the weight of the evidence. 

The presiding Judge overruled the motion for a new tri&l, 
and defendant complains that the judgment is erroneous, 
and asks that it be reversed. 

W. W. & H. F. Merrell, for plaintiflfe in error. 

Burke & Black and Hugh Buchanait, contra. 



ATLANTA, MARCH TERM 1861. 371 

Hndgins va. Crow ei cU, 

By the Cburt — ^Lumpkin, J., delivering the opinion. 

This was an action of ejectment for lot No. 195, in the 
7th district of what was formerly Carroll, now Harralson 
county. Both sides claim under the same grantor, John A. 
Goolsby. The plaintiff deduces his title through a deed to 
Harrison Crow, dated 1st December, 1830, and recorded the 
14th December, 1831. The defendant relies on a sheriff's 
deed to the land, sold as the property of Goolsby, the 5th of 
May, 1832, and the question as to the title in this case turns 
npoQ the date of the execution under which this sale was 
made. It was a Justice's Court Ji. fa, in favor of Simpson. 
Every place has been searched where it was likely any infor- 
mation could be had respecting the execut^n, and it cannot 
be found. Goolsby removed from DeKalb county, whence 
the execution purports to have been issued, at the end of 1829. 
He was living in Meriwether county when the deed was made 
to Crow, in December, 1830. Diligent search has been made 
in DeKalb county during the years 1826, '27, '28, and ^9, 
during which Groolsby lived in DeKalb, and no vestige 
of the docket of the magistrate can be founds. Considering 
the frequency that Justice's Courts hold their sessions — that 
within a year, at least, after Goldsby left DeKalb, the 
Judgment was rendered against him, which sold the land; 
especially as the case was not certioraried, or any other 
extraordinary delay intervened; consequently the judgment, 
it may be fairly inferred, was older than his deed to Crow. 

So mach for the conflict of title — and then as to the pos- 
session. 

Elihu Williams went into possession in December, 1851, 
and has occupied the land, he and his tenants, ever since, 
or»ntinoouslj. For we cannot subscribe to the doctrine that 
the interval which necessarily elapses between the time of 
f>nc tenant moving off and another moving on the premises, 
^rhere there have been a succession of crops made every 
rrar shall forfeit the benefit of the statute — although, in 
he lai^aaS^ ^^ ^^^ Court below, the chasm should be but 



372 SUPREME COURT OF GEORGIA. 

ToUeson vs. Posey. 

for a siDgle day. Our conclusion is^ that the defendants 
have the actual; as well as the possessory, title. 

As it respects the former suit, all we have to say is, that 
while we do not hold that, in order to prevent the statute 
from running, the action should be renewed within rix 
months in the same form, it must be between the same parties 
and for the same cause of action. But the complaint was in 
favor of Gresham, and Gresham is one of the lessees of the 
plaintiff in the present case ; but there can be no recovery on 
this demise, as the deed to the land to Gresham was made 
while the land was held adversely. 

Let the judgment be reversed. 



Jesse Tolleson, plaintiff in error, vs, Pinckney C. Posey, 

defendant in error. 

1. Ii^ an action for slander, the plaintiff read in evidence the deposi* 
tioos of a witness to prove the speaking of the slanderous words. 
The defendant then offered the depositions of the same witness, taken 
out by him, to pf ove, that subsequent to the speaking of the defama- 
tory words, the plaintiff had made an Unsuccessful effort to induce the 
witness to swear falsely in the case : Hdd, That upon ojections made 
to the latter depositions, the Court ought to have excluded them. 

2. The books of the Receiver of Tax Returns are admissible as evidence, 
in an action on the case for slanderous words, for the purpose of 
showing the amount and value of the property admitted by the defend- 
ant to be his. 

3. Bills of indictment preferred by the defendant as prosecutor, against 
the plaintiff, and ignored by the grand jury, are admissible as evi- 
dence, in an action of slander, to show malice on the part of the 
defendant. 

4. A charge to the jury, predicated on testimony which should hav*' 
been excluded,, is erroneous. 

Action on the case for words, in Carroll Superior Court. 
Tried before Judge D. F. Hammond, at the October Term, 
1860. 

This was an action brought by Jesse Tolleson agamsl 



ATLANTA, MARCH TERM, 1861. 373 

Toilesoa o«. Posey. 

I 

Piockney C. Poeeyi to recover damages for slanderous words 
spoken by defendant, of and concerning the plaintiff, charg- 
ing him with having stolen the shucks, fodder, and hogs of 
the defendant. The words are alleged to have been pub- 
iished on the 16th of October, 1857, and at other times 
before the suit was brought. 

On the trial, the plaintiff proved the speaking of the 
vords charged, by several witnesses, to-wit : Fanny Jones, 
and Amanda Posey, and Martha E. Sexton. 

The plaintiff then offered in evidence the tax books to 
show the relative wealth of the parties, but the Court 
eiclnded the testimony, and plaintiff excepted. 

The plaintiff also offered in evidence, two bills of indict- 
mentj preferred by defendant as prosecutor, against the plain- 
tiff, one for peijury and one for assault and battery, both of 
which were ignored by the grand jury of said county of 
QuToIl, but the Court rejected the testimony, and plaintiff 
excepted. 
The plaintiff then rested his case. 

The defendant offered in evidence the depositions of 

Fanny Jones, taken Out by him, to prove that plaintiff tried 

to get her to swear falsely in the case, telling her that if she 

would swear that she heard the defendant say that plaintiff 

had stolen a yellow barrow hog, corn, fodder, shucks, water- 

weloDS, peaches, and apples, that she should lead a lady^s life. 

The witness states, in the same depositions, that the effortto 

bribe her was not successful, and that her testimony in behalf 

of the plaintiff was the truth and nothing but the truth. 

The defendant introduced several witnesses to impeach the 
testinaoiiy of Martha E. Sexton and Amanda Posey, on the 
ground of general bad character, and the plaintiff likewise 
introdaeed several witnesses to support the testimony of 
Mardia £• Sexton. 

Tbe Ckmtt charged the jury, amongst other things, that 

^tb^ fluntiff's conduct, since the speaking of the defamatory 

^rarAp in the management of his case, might be such as to 

jostafy m diAiiootion of the damages, but that no diminution 

of bim tfitfdi^g aince the speaking of the words, from other 



374 SUPREME COURT OP GEbRGIA. 

ToUeson vs. Posey. 

circumstances^ could be taken into consideration by them, 
and the true criterion was^ the plaintiff's character when slan- 
dered." 

The Court also charged the jury, " that they had a right 
to scrutinize the plaintiff's whdie conduct, as disclosed by tbe 
testimony of Fanny Jones, as well as all the circumstances of 
the case, for the purpose of ascertaining what amount of 
improper influence plaintiff had exerted over the witness, 
and otherwise, in the preparation of his case, for the purpose 
of ascertaining the true status of the case, and to enable them 
to ascertain what amount of damages the plaintiff ought to 
recover." 

The jury returned a verdict in favor of the plaintiff for 
one dollar, and his counsel moved for a new trial, on the 
grounds : 

1st. That the Court erred in admitting the depoeilions of 
Fanny Jones, taken out, and offered in evidence by the de- 
fendant. 

2d. That the Court erred in rejecting the tax-books offered 
in evidence by plaintiff. 

3d. That the Court erred in excludifag the bills of indict- 
ment tendered in evidence by the plaintiff. 

4th. That the Court erred in charging the jury as herein- 
before set forth. 

The motion for new trial was overruled, and that decision 
is alleged to be erroneous. 

W. W. & H. F. Merbell, for plaintiff in error. 
Burke & Black, for defendant in error. 

By the Court. — Jek^h^s, J., delivering the opinion. 

Error is assigned, in this case, upon the ruling of the 
Court, admitting the evidence of Fanny Jones, ofiered by the 
defendant. This was one of the witnesses by whom plaintiff 
proved the speaking of the slanderous words. The defend- 
ant subsequently examined her to prove that plaintiff bad 
attempted to bribe her as a witness in the case. She proved 



ATLANTA, MARCH TERM, 1861. 375 

Tolleson w. Posey. 

the attempt, but avers that she did not yield to the tempta- 
tion, but on the contrary, that she, as plaintiff's witness, had 
sworn to the truth, the whole truth, and nothing but the 
truth. Objection being made, the Court admitted the evi- 
dence. Our judgment is, that the evidence should have been 
excluded. It does not go to impeach her previous testimony, 
bot to sustain it. It was not competent to mitigate damages 
for two reasons : 1. The conduct of the plaintiff, which it 
discloses, as indicating want of integrity on his part, was sub- 
sequent to the alleged defamation, and his character as it was 
before, and at the time of the speaking of the words, and not 
as affected by subsequent acts, is the true subject of inquiry. 
2. The good character set up by plaintiff .cannot be assailed 
by proof of particular acts inconsistent therewith. The de- 
fendant, on this point, is confined to genel»l bad character. 
Richardson vs. Roberts, 23 Ga. K., 215. * 

Error is further assigned against the rejection, by the 

Ck)urt, of the tax-books, to show the quality and value of 

property admitted by the defendant to be his. This evidence 

was offered to aid the jury in fixing the measure of damages. 

Juries are authorized in such cases to give smart money, or, 

in other words, to make the verdict somewhat positive. What 

a poor man would feel as smart money, one of very large 

means would not. We think, in assessing damages for an 

ascertained wrong, it is admissible for the jury to look to the 

defendant's circumstances ; if so, then it is proper that they 

should have evidence of the extent of his wealth, and there 

can be no more reliable evidence to show a given amount of 

wealth than his own verified statement given as the measure 

of liability for taxation. It is complained that the Court 

erred in rejecting certain bills of ii^dictment preferred by 

defendant against plaintiff, and ignored by the grand jury, 

when OfSered in evidence by plaintiff. This was competent 

evideocc^ not to enhance the damages, but to show malice. 

Jg him often been ruled, that for this purpose, acts done, or 

WmSb apoken, other than those which are the gravamen of 

the 0lltBk't^odiog9 £U^ competent, though it has been said that 

the Om"^^^^^ charge the jury not to increase the damages 



376 SUPREME COURT OF GEORGIA. 

Ramsey vSf Blalock et al, 

by reason of such other words spoken^ or acts done. These are 
only evidence of the quo animo, Rustell vs. McQuisfcer, 
1 Camp. 49, n. McLeod vs. Wakely, 3 Car. & P., 311. 
Adkins vs. Williams, 23 Ga. R., 222. 

It is lastly assigned as error, that the Court charged the 
jury, at defendant's request, that they had the right to scru- 
tinize the plaintiff's whole conduct, as disclosed by Fanny 
Jones, in her depositions taken by defendant for the purpose 
of determining to what amount of damages the plaintiff was 
entitled. Having already ruled that this evidence was im- 
properly admitted, we have no hesitation in holding that this 
charge of the Court was erroneous. According to the rules 
of law governing this action, an illegal or immoral act, done 
by the plaintiff, is no sufficient cause for mitigation of dam- 
ages for any injury previously done him by the defendant. 

The verdict of the jury affirms that the injury oomplained 
of was done to the plaintiff by the defendant. They do not 
sustain his plea of not guilty, and it may be that the very 
small damages they found were assessed under this and other 
erroneous rulings of the Court. We think, therefore, the 
judgment of the Court below, refusing a new trial, should be 
reversed, and the cause re-tried. 

Let the judgment be reversed. 



Charity A. Ramsey, administratrix, etc., plaintiff in error, 
. V8. Zadock Blaloce, et a/., defendants in error. 

1. It is error in the presiding Judge to charge the jury, that a vendor i> 
bound by false representations made by his agent, in the sale of & 
negro, unless there be proof that the vendor had an agent in such sale. 

2. An administrator can not bind the estate of his intestate, by a var- 
ranty of the soundness of an article sold by him. 

8. A verdict unsupported by evidence, will be set aside. 

Assumpsit, in Campbell Superior Court, Tried, before hi.' 
Honor Dennis F. Hammond, at August Term, 1860. 



ATLANTA, MABCH TERM, 1861. 377 

Ramsey V8. Blalock et al. 

The questions made in this case arise out of the following 
state of facts^ to-wit : 

On the 2d day of June, 1857, Charity A. Ramsey, as the 
administratrix of James W. Bamsey, deceased, sold at public 
oatcry, and at administrator's sale, a negro girl by the name 
of Martha, belonging to the estate of said deceased. At 
said sale, Zadock Blalock was the highest bidder, and the 
negro was knocked off to him at the price of $530 00. 
For this sum, Blalock gave small notes of $60 00 each, 
payable to the administratrix, due the 25th of December, 
1857, with Thomas Bnllard and Fayette S. Fitch as securi- 
ties. The administratrix executed and delivered to Blalock 
a bill of sale for the negro girl, in the usual form of an admin- 
idtratoi*^8 bill of sale, in which the negro was described as 
being seven years old. 

The administratrix brought suit, on eight of the promis- 
sory notes given for the negro, against Blalock and his sure- 
ties, returnable to the March Term, 1858, of Campbell 
Saperior Court. 

The defendants set up a plea to the action, that the notes 
sued on were given for a negro girl named Martha, which 
the plaintiff warranted to be sound and healthy, but which, 
before and at the time of the sale, was unsound and diseased 
with chronic diarrhoea, which rendered her worthless, and of 
which she soon thereafter died, and that therefore the con- 
sideration of said notes had wholly failed. 

On the trial of the case there was a considerable number 
of witnesses sworn, of whose testimony the following is a 
condensed statement: 

It seems that the little negro girl had contracted the habit 
of eating dirt, which gave her a s#arthy or ashy complexion ; 
that her general appearance was unhealthy ; that her owners, 
hefiyre the sale, had given her medicine, and that she had a 
'' Tanning off at the bowels ; " that the intestate once said 
thai he believed she would die, and that she was not worth 
$10.00| bat when asked if he would take that sum for her, 
hd ansvered no; that when the negro was brought to sale, 



378 SUPEEME COURT OF GEORGIA. 

Ramsey vs, Blalock et al. 

Thomas Bullard cried the sale ; that one Noah Smith, the 
brother of the administratrix, was present at the sale, and 
was asked by a bystander if the negro girl was sound, to 
which question Smith replied that she was as sound as a 
dollar ; that none of the witnesses knew whether the admin- 
istratrix heard Smithes remark or not ; she neither assented 
to or dissented from the remark; that she was standing near 
by, and, in the opinion of one of the witnesses, looked at 
the witness as if she meant what Smith said; though she did 
not say a word ; that it did not appear that Blalock heard 
Smith's remark ; that after the sale Blalock, announced him- 
self as well pleased with the negro and his bargain ; that he 
was offered a premium on the price he paid for the negro, 
and refused to take it ; that some three months after the sale, 
the negro exhibited dropsical indications; that about the 

_ ■ 

25th of December, 1857, the negro died of typhoid pneu- 
monia, which is an acute, and not a chronic, disease; that 
toward the last she had hemorrhage of the bowels, which is 
a result of pneumonia ; that physicians who examined the 
girl, could see no indications of a chronic disease in her or 
about her. 

In reply to defendant's testimony, as to the unhealthiness 
of the negro before the sale, the plaintiff introduced several 
witnesses who knew the girl familiarly, and* some of whom 
knew of from the time of her birth to the time of the sale, 
all of whom swear that the girl was sound and healthy. 

After the testimony had closed, and the Court had charged 
the jury, as bereinaft;er stated, "the jury returned a verdict for 
the defendants. 

Counsel for the plaintiff then moved for a new trial on 
the following grounds : 

1st. Because the jury found contrary to law, contrary to 
the evidence, contrary to the weight of the evidence, and con- 
trary to the charge of the Court. 

2d. Because the Court erred in charging the jury " that 
the plaintiff was bound by the sayings of Noah Smith, (if 
the jury believed that Smith was her agent,) that the slave 
in controversy was sound, provided she knew that snch was 



ATLANTA, MARCH TERM, 1861. 879 

Ramsey i"* Blalock ei al. 

sot the fact, and heard the representations and did not deny 
or adpait them, that any false representations made by 
plaintiff's agent would bind her/' which charge was con- 
traiy to laWj and given in the absence of any proof^ that 
Noah Smithy who made the representations^ if any were 
luade, had any authority from plaintiff to make them^ or to 
sell the negro as plaintiff's agent. 

The presiding Judge refused to grant the new trial, and 
that refusal is the error complained of. 

Stone & Fitch, for plaintiff in error. 

TiDWELL & WOOTEN, COlltrd. 

By the Court — Jenkins, J., delivering the opinion. 

1. The first exception in this record goes to error in the 
charge of the Court below, to the effect that the plain- 
tiff was bound by any false representations as to the sound- 
ness of the slave sold, made by her agent and uncontra- 
dicted by her. 

The evidence shows that the negro, which was the con- 
sideration of the notes sued on, was sold at public outcry 
by an auctioneer, in the presence and under the direction of 
the plaintiff as administratrix, etc. 

It does not appear that the plaintiff had any agent in this 
sale, other than the auctioneer; nor does it appear that he 
made any representations whatever relative to the soundness 
of the negro. It is proven, that one Noah Smith (the plain- 
tiff's brother, being present, and having been questioned to 
the point by a bystander,) stated that the negro was sound. 
There is no evidence that he was authorized by plaintiff to 
make this or any other statement, nor that she heard the 
statement made by him. Looking to the state of the proofs 
audio the pleadings, we think that this charge was unguarded 
and calculated to mislead the jury. 

2. The verdict of the jury is contrary to law and to the 
evidenoe. Defendant's plea is, that the consideration of the 
iKileaaiied on has &iled^ in this, that they were given in part 



380 SUPREME COURT OF GEORGIA. 

Stocks and another vs. Moncas. 

payment for a certain negro^ which was, by the terms of the 
sale, warranted to be sound, and which was in fact unsoand, 
having a disease of which she aflerward died. There is uo 
allegation of deceit in the sale. 

This defense must fail in law, for the reason that an 
administrator can not bind the estate of his intestate by a 
warranty of the soundness of an article sold by him. The 
case of Williamson vs. Walker, 24 Gra. R., 257, does not go 
to this length ; but only to the extent that an estate can Dot 
be pi'ofited by a willfully false representation of the repre- 
sentative. 

Nor, in our opinion, was the defense at all more sucoesa* 
ful upon the facts. There is no proof of a warranty of 
soundness. The proof of unsoundness at the time of the 
sale is by no means satisfactory. There is abundant evi- 
dence that the slave died of an acute disease which she 
oould not have had at the time of the sale. There was error 
in overruling the motion for a new trial. 

Let the judgment be reversed. 



John Stocks and another, plaintiffs in error, vs. Johk K. 

MoNCAS, defendant in error. 

1. S. and J. indorse to M. certain promisaorj notes, " to be liable in the 
second instance.'' The maker of the notes resides out of the State 
at the time of the indorsement. M., after having sued the maker to 
insolvency, in another State, brings snit against the indorsers, within 
six years after the return of nuUa bona against the maker, though not 
within six years after the date of the indorsement: Hddj That the 
action against the indorsers was not barred by the statute of limita- 
tions. 

Assumpsit, in Polk Superior Court. Tried before Judge 
D. F. Hammond, at November Term, 1860. 

This action was brought by John K. Moncas, for the 
use of Grarret Copeland, against John Stocks and another, 



ATLANTA, MATICH TERM, 1861. 381 

Stocks and another V8. Moncas. 

indorsers, to recover the sam due on certain notes against 
one Reeves, indorsed by defendants, '^to be liable in the 
second instance/' 

The facts necessary for an understanding of the questions 
adjadicated, are stated in the opinion of the Court. 

Chisholm, Fielder, Shbofshihe, for plaintiff in error. 

Broylbs, contra. 

By the Court. — ^Lumpkin, J., delivering the opinion. 

Stocks and Ledbetter indorsed, to be liable in the second 
instance, sundry notes of Reeves to one Moncas — some under 
seal and some not. This fact, however, although important 
in one aspect in which this case is presented, will make no 
difference in the view we take of it. These notes and single 
bilb, or bonds, had been once in circulation, and taken up 
and re-is8ued ; and this indorsement made by Stocks and Led- 
better was some time after the notes fell due. 

From the testimony of young Stocks, the son of the party, 
we think it pretty clear that Reeves, the principal, was living 
out of the State at the time. Stocl£s and Ledbetter, imme- 
diately after the indorsement, gave the indorsee, Moncas, 
notice under our statute, to sue. He did not sue within 
three months, but did sue the notes to insolvency during the 
year 1842. Moncas commenced his action against Stocks 
and Ledbetter within six years after the return of nulla bona 
against Reeves, in North Carolina, though not within six 
years after the indorsement by Stocks and Ledbetter in 
3^Iay, 1840. 

Kow, the position taken by the indorsers is, that on account 
of the non-residence of the maker, a right of action accrued 
to Moncas to sue the indorsers forthwith; and failing to do 
sOy he is barred of his action. Conceding that the indorsee 
might have sued the indorsers in the first instance, still, was 
he bound to do so? And shall he suffer for fulfilling his con- 
t rft i t o sue the maker to insolvency ? Was it not contem- 
plated that he should sue the maker to insolvency ? Did he 



382 SUPREME COURT OF GEORGIA. 

Wooten and Goolsby vs, Galahao. 

not bargain to do it? And if Beeves lived in North Carolina 
at the time, and the proof leaves no doubt upon this subject, 
was it not his duty to first sue him? Did not the indorsers 
only undertake to be liable in the second instance ? And does 
it lie in their mouths to object that it was done ? It cannot 
be presumed that the indorsers would have transferred the 
notes, and stipulated that the maker should be sued to insol- 
vency, when the effect was to bring suit against them in the 
first instance. 

It seems to us, that the proposition has only to be stated, to 
commend itself to the judgment and approval of any man. 

The statute of a sister State, Alabama, is cited, to the effect 
that the maker of the note must be sued to insolvency to the 
first Court, or the indorser is discharged. It has been held 
that the non-residence of the maker will excuse the holder. 
Surely, it is a sufficient excuse in all cases where that fact is 
not known to both parties, and they contract in reference to 
to it. But the obligation created by statute and contract are 
different. But we do not put this case upon that difference. 
We say the holder may sue the non-resident maker in terms 
of his contract, and it is not for the indorser to object, if he 
does. 

Let the judgment be affirmed. 



John F. Wooten and Isaac N. Goousby, plaintiffs in error, 
V8. Absalom Calahan, defendant in error. 

1. A party who sells a negro, representing her to be sound| will not be 
charged with damages, unless it appear that the representations were 
false, within the knowledge of the party making them ; or that the 
representations were made recklessly, with an intention to deceive the 
purchaser. 

2. Representations that a negro is sound, if honestly made, and believed 
to be true by the party making them, though not true in fact, do not 
furnish a ground of action. 

8. To sustain an action for deceit, it is indispensable that a scienter be 
both alleged and profed. 



ATLANTA, MARCH TERM, 1861. 383 



Wooten nnd Goolsby vs, Calahan. 



Action for deceit, in Floyd Superior Court. Tried before 
Judge Denkis F. Hammond, at the January Term, 1861, 

On the 29th day of January, 1863, Wooten & Goolsby 
sold to Absalom Callahan a negro woman named Fanny, 
about twenty years old, and gave a bill of sale, warranting 
the title to the negro. The negro woman died in about one 
week after the trade, Calahan instituted an action for deceit, 
against Wooten <& Goolsby, alleging that he paid them 
|775 00 for the negro woman, and that they warranted her 
to be sound and healthy in body, and free from disease, ex- 
cept a cold^ of which she was then mending, all of which 
warranty was false ; that the said Wooten & Goolsby fraud- 
ulently repre^sented the said negro to be sound and well, 
ej^cept a cold, of which she was getting better, when in fact 
she was then sick and unsound, and then had typhoid fever, 
of which she shortly thereafter died. 

On the trial of the case the evidence adduced showed the 
following facts: that the negro was sold by Wooten & Grools- 
bv to Calahan on Saturday, and that she had been complain- 
ing of cold and a pain in her head, and had not worked for 
two or three days before the trade; that some days before 
the trade, Calahan had sent an agent to Wooten's house to 
examine and report upon the condition and value of the 
negro; that the agent found her plowing in the field; she 
seemed to be well, and the agent was pleased with her, and 
80 reported to Calahan ; that at the time of the trade, the 
negro came out, and said she was sick, and that Wooten, who 
is a physician, instantly remarked that there was nothing the 
niatter with her but a cold, and she was the better of that ; 
that the price paid for her by Callahan was $775 00; that 
Wooten sat down and wrote the bill of sale, and slided it 
^ong on the table, and the agent and witness of Calahan 
picked it up and read part of it ; that Calahan did not read 
it, or ask for it to be read ; that, in the evening, Calahan sent 
his son forthe n^ro, and she was carried hom£, a distance of 
from two to two and a half miles, in an open wagon ; that 



384 SUPEEME COURT OF GEORGIA. 

Wooten and Goolsby vs. Calahan. 

the negro reached Calahan's about sun-down^ and was sick 

when she arrived there ; that she grew worse, and on next 

morning Dr. Saunders was sent for, but did not come until 

evening ; that Dr. Saunders attended the negro, and was of 

opinion that she had fever, complicated with pneumonia; that 

the negro complained, and said she had been suffering with 

a cough, pain in the chest, and general debility, for a week 

or two, and had been exposed to the cold weather ; tliat 

Saunders did not know how long the negro had been afflicted 

with pneumonia, but from the symptoms and sayings of the 

negro, he thought she must have had the disease for several 

days; that the negro died in about one week after the trade, 

and that Calahan was a poor man and illiterate, but can i:pad 

writing a little. 

Upon this testimony and the charge of the presiding 

Judge, as hereinafter set forth, the jury returned a verdict 

for $775 00, with interest from the 29th of January, 1853. 

Counsel for Wooten & Goolsby then made a motion for a 
new trial, on the following grounds, to-wit : 

1st. Because the Court erred in charging the jury " that 
when two persons treated on equal terms, and no representa- 
tions were made by one upon which the other acted, although 
the property traded for should be unsound, unless it was 
unsound within the knowledge of the vendor, no recovery 
could be had in an action of deceit; but when the parties meet 
on unequal terms, and the vendor makes representations 
which are false, upon which the vendee acts, that it matters 
not whether the vendor knew them to be false or not, he was 
bound by the representations made;" and the presiding 
Judge illustrated by saying, "that if a machinist, in selling 
a piece of machinery, represents it to be of one quality, 
when it is of another, and an infierior quality ; or if a phy- 
sician should represent a slave to be sound, to a person who 
is no adept, then, in such case, the party making the repre- 
sentations is bound by them." 

2d. Because the Court erred in charging the jury, ^' that if 
Wooten made representations which were false, in relation 
to the soundness of the negro, upon which representations 



ATLANTA, MARCH TERM, 1861. 385 

Wootcn and Goolsby V9, Calahan. 

Calahan acted, it was immaterial whether Wootea, if he was 
a physician or an adept, knew the representations to be false 
or not If Wooten knew them to be false, it was a fraud in 
&ct; but if he did not know them to be false, and Calahan 
acted upon them, he was guilty of a fraud in law, and Cala- 
han ought to recover, if the parties did not treat on equal 
terms." 

3d Because the Court refused to charge the jury, when 
counsel for defendants requested him so to do, 'Hhat if, 
indeed, the representations were false, to the knowledge of 
the party making them, this would, in general, be conclusive 
evidence of fraud ; but if the representations were honestly 
made, and believed at the time to be true by the party 
making them, though not true in point of fact, this does not 
amount to fraud in law ; but that the rule of caveat emptor 
applies, and the representations themselves do not furnish 
a ground of action/' His Honor, instead of giving such 
cJiarge, remarked, '^ that he would charge the principle em- 
bodied in the request to be law, with the explanation and 
qualification before stated, and that the doctrine in the 
request only applied to cases where parties treated on equal 
terms.'' 

4th. Because the jury found contrary to law, contrary to 
evidence, and contrary to the weight of the evidence. 

The Court overruled the motion and refused the new trial, 
and that decision is the error complained of. 

P. W. Alexander, for plaintiflT in error. 
Undisrwood & Mitchell, oonJtra. 

9 

m 

By ike Court. — ^Lyon, J., delivering the opinion. 

This was an action for damages, that the plaintiff therein 
alleges lie sustained, by reason of the deceit and misrepre- 
^ntatioa practised by the defendants upon him, in the sale 
(pf a negro woman named Fanny, in this, that the defendants 
represented the negro to be sound, when she was not sound, 
Vol- zxxn — 25. 



386 SUPREME COURT OF GEORGIA. 

Woo ten and Goolsby vs, Galahan. 



bat was afflicted with a disease of which she subsequently 
died. 

1. To charge one with damages resulting from representa- 
tions of this character^ it must appear that the representation 
was false to the knowledge of the party making it, or that 
the representation was made with an intention to deceive the 
purchaser by the person making the representation, he not 
knowing or caring whether the representation was true or 
false; but if the representation was honestly made and 
believed at the time, by the party making it, though not 
true in point of fact, such representation does not famish a 
ground of action. Manes vs. Kenyon, 18 Gra. R., 202; 
Wooten & Goolsby vs. Calahan, 26 Ga. R., 367 ; Bennett 
vs. Terrell, 20th Ga. R., 86 ; 'Broom's Comm., 342 to 349. 

2. Herein lies the error of the Court in the charge given 
and refused, that '4f the defendant, Wooten, in making the 
representation complained of, although he was a physician, 
an adept, or one skilled in the subject more than the one with 
whom he was dealing, did not know that the same was false, 
nor made it with an intention to deceive and mislead the 
purchaser, although it might in point of fact be false, yet he 
is not liable for any injury resulting therefrom. The Court 
charged to the contrary, and this was erroneous. 

The fraud and misrepresentation alleged, on which a recov- 
ery is solicited, are, that no clause of a warranty of sound- 
ness was inserted in the bill of sale, and when the negro was 
being exhibited to the plaintiff at the time of sale^ and she 
complained of being sick, the defendant replied instantly, 
that she only had a cold, and was better of that. This, it is 
insisted, was false. There is no evidence that it was a part 
of the agreement of sale that the soundness of the n^ro was 
to be warranted. To have entitled the plaintiff to a recov- 
ery, on the ground of a misrepresentation as to the real 
condition of the negro, it was necessary to have shown 
affirmatively, that the representation that the negro only had 
a cold, and was better of that, was false ; and that Wooten 
knew it to be so; or that he made it recklessly, 'W^ith an in- 
*<^ntion to defraud the plaintiff. There is no evidence that 



ATLANTA, MARCH TERM, 1861. 387 

Woolen and (Joolsby V9. Galahan. 

the negrOy at the time of the sale, was afflicted otherwise than 
with a common cold ; certainly none, that she was at that time 
laboring under a disease of as serious and dangerous character 
to a negro as that of pneumonia, but she was well enough to 
travel, in an open cart, from two to two and a half miles in 
the evening of the 29th of January, and that when she 
arrived at the place of destination she was sick, and that night 
(jrew worse. It did not strike yoang (lalahan that she was 
so sick, before starting, as to make her exposure at the time 
dangerous, and that would have struck the dullest observer 
had she then had pneumonia. But allow that she may have 
bad pneumonia at the time of the sale, there is no evidence 
that Wooten, the defendant, knew the attack was of that 
serioas character, or that he made the statement recklessly, 
for the purpose of defrauding the plaintiflF. On the contrary, 
the trade, when made, was a consummation of a negotiation 
commenced when the negro was unquestionably sound and 
well — a circumstance that goes far to repel any presumption 
of fraud that might arise from her subsequent and immediate 
illness. Great stress was placed, in the argument, jon two cir- 
camstances manifested by the evidence. One is, that when 
the negro said she was sick, Wooten instantly replied, that 
^be only had a cold, etc., and the other, that when Wooten 
wrote the bill of sale " he slided it along on the table " — that 
iSy we suppose, he wrote the paper on the table, in presence 
of the purchaser and his agent, the witness, and when it was 
finished, pushed, or slided it to the agent, who had made, and 
who seems to have been the only active party in it, for exam- 
ination. If either of the circumstances, light and trivial as 
they appear to us, as presented in the record, were of a sus- 
picious nature, as pregnant circumstances of fraud, they 
oa^ht to have so struck the party and his agent, or witness,. 
at the time, and stayed the trade, and not lefl to be developed 
by the subsequent death of the negro. In every view of 
tbifl ease the verdict was wrong, against the law, and against 
the 0ndmoe. 

TCh0 case was really adjudicated when it was here be* 
foref (Bee 2d 6a., 867,) when all the facts were out, a ver- 



388 SUPREME CXDURT OF GEORGIA. 

Ross V8, Harvey & Scott. 

diet for plaintiffy and a motion for a new trials as now. The 
Court bad charged the jury on that trial as in this^ that 'Mt 
was immaterial whether Wooten knew the representation to 
be false or not; that if he knew them to be false, it was a 
fraud in fact, and if he did not know them to be false, it was 
a fraud in law." This Court sent the case back on that 
ground alone, holding, so briefly that the decision ought 
not to have been misunderstood, that *^ in deceity it is india- 
pensable thai a adenler be both alleged and proved^' 
Let the judgment be reversed. 



A. B. Ross, jjlaintiff in error, c«, Harvey & Scjott, 

defendants in error. 

1. The Dalton and Gadsden Railroad is located in Floyd county, and 
lands have been ceded to it for that purpose. A number of its stock- 
holders^ and one of its directors, reside in Floyd county, but its prin- 
cipal office for the transaction of business is located in Whi^eid 
county. The company brings suit in Floyd Superior Court, against 
one of the subscribers to its stock, to recover his subscription, and 
the suit is dismissed by the attorneys for the plaintiff: Heldj That the 
company is a non-resident of Floyd oouaty, and its attorneys are lia- 
ble for the costs of the case. 

Motion to enter judgment far costs, in Floyd Superior 
Court Decided by Judge Dennis F. Haj^mond, at the 
January Term, 1861. ^ 

Messrs. Harvey & Scott, as attorneys for the plaintifT, 
brought an action in Floyd Superior Court, in favor of the 
Dalton and Gadsden Hailroad Company, against A. Moore 
and P. R. Bobo, subscribers to its capital stock, to recover 
the amount of their subscription. 

Subsequently, the suit v^as dismissed by the attorneys of 
the plaintiff, and in behalf of the Clerk of said Court, a 
rule was taken requiring the attorneys to show cause wbv 



ATLANTA, MARCH TERM, 1861. 389 

Boss M. Harvey k Scott. 

judgment should not be entered up against tbem for the 
costs due to the Clerk in said case. 

The attorneys showed for cause, that at the commence- 
ment of said suit, the said company kept their 'principal 
office at Dalton, in Whitfield county, but their road had 
been located through the county of Floyd, lands having 
been ceded to the company for that purpose ; that quite a 
number of the stockholders in said company, and one of its 
directors, resided in Floyd county, and that since the suit was 
commenced, the company had agreed to consolidate its stock 
and interests with the Georgia and Alabama Railroad Com- 
pany, whose principal office is located in Rome, Floyd 
county. 

Upon this showing, the presiding Judge decided, that the 
attorneys were not liable for costs, and discharged the rule 
against them, and that decision is the error alleged. 

E. T. FoxjCHE, for plainti£F in error, 
Harvey & Scott, contra. 

By the OovrL — ^LuMPKiK, J., delivering the opinion. 

The only question in this case is, is the plaintiff a non. 
resident? If so, the Acts of 1812 and 1839 make the 
attorneys liable for costs. It is admitted that the plaintiff's 
prbcipal office for doing business is in Dalton, Whitfield 
county. Their road has been located in Floyd. Lands have 
been ceded for that purpose. A number of the stockholders, 
together with one director, reside in Floyd, and moreover, 
the Dalton and Gradsden roads have, since the institution of 
the suit, been united with the Georgia and Alabama Road, 
whose place of doiug business is Rome, Floyd county. This 
last fact comes too late to affect the question, and while it 
may be true that the location of the road through Floyd 
will omfer jurisdiction for certain purposes, under the special 
Legislature of 1854 and 1856, yet this case does not fall 
within them. This is an action by the Dalton and Gadsden 
Bottd, agwnst certain stockholders, to collect the assessments 



390 SUPREME COURT OF GEORGIA. 

Bahanan et (d., vs. Bona. 

made on their stock as subscribers^ and their principal office 
for doing business is their only place of residence for that 
purpose. And the fact of their owning property' in Floyd 
county will, we apprehend, make no difference under the 
Acts of 1812 and 1839. The plaintiff might own property 
under those acts in the county where the suit was instituted, 
and that would not exempt the attorney from liability. 
Let the judgment be reversed. 



John Doe, ex dem. Bohanan, d al.j plaintiff in error, vs. 
Roe, casual ejector, and Bonn, tenant, etc., defendant in 
error. 

1. One who has a direct interest in the event of the snit, is an incompe- 
tent witness in behalf of the party with whom his interest is identified. 

2. A party cannot complain of the charge of the Conrt, unless he can 
show that under the law and facts of the case, he was entitled to re- 
cover, if the charge had not been given, or had been given, as he 
desired it. 

8. A plaintiff in ejectment can not recover on a joint demise, without 
proof of a joint interest in the lessors. 

4. Where there is an irreconcilable conflict in the testimony of two wit- 
nesses of equal credibility, upon a question fairly submitted to the 
jury, it is the province of the jury to decide between the witnesses, 
and their finding will not be disturbed, especially where the jury fol- 
lows the law, and the Judge who tried the case, refused a new trial. 

5. A verdict in conformity to law and the &ct3 of the case, will not he 
disturbed. 

Ejectment, in Carroll Superior Court. Tried before Judge 
D. F. Hammond, at the October Term, 1860. 

This suit was brought by John Doe, on the demises of 
John Bohanan, Nathaniel F. Harris, William F. Bond & Co., 
and James Bond, against Richard Koe, casual ejector, and 
George Bonn, tenant in possession, to recover lot of land 
No. 264, in the 6th district of Carroll county. 

On the trial of the case, the following evidence of title to 
the land in dispute, was introduced by the plaintiff, to- wit : 



ATLANTA, MARCH TERM, 1861. 391 

BohaoaQe^ al., vs. Bonn. 

A grant from the' State to John BohanaD, dated 28th of June, 
1830— a deed from Bohanan to Nathaniel F. Harris, dated 
15th December, 1830 — ^a deed from Harris to William F. 
Bond & Co., dated Ist February, 1839 — and a deed from , 
William F. Bond to James Bond, for one-half the lot in dis- 
pute, dated in 1842. The locus, and possession of the defend- 
ant at the time the suit was commenced, being admitted, the 
plaintifiT rested his case. 

The defendant then introduced a deed to the land from 
Eli Benson, sheriff of Carroll county, to the defendant, dated 
the 1st Tuesday in December, 1851, accompanied by &fi.fa. 
from Wilkinson Superior Court, in favor of Joseph Bond, 
against William F. Bond and John C. Sheffield^ issued from 
a judgment obtained at the October Term, 1839, and levied 
20th August, 1851, on the lot of land in dispute, for the sum 
of $7,658 00, principal. The fi. fa. had thereon the follow- 
ing, to-wit : 1st. " No property to be found whereon to levy 
the within^. /a., this the 14th day of August, 1846, W. H. 
Macarthy, sheriff." 2d. "Levied this^. /a. on lot of land 
No. 73— 16th — 3d, as the property of Wm. F. Bond, April 
2d, 1847, J. O. Dyer, sheriff." " The above lot of land sold 
to Spencer Riley for two hundred and twenty-five dollars, 
this 4th May, 1847, J. O. Dyer, sheriff," "after paying seven 
dollars and eighteen cents for advertising, levying, and com- 
missions on sale, leaves a balance of two hundred and seven- 
teen dollars and eighty-one cents, as a credit on this Ji. fa" 
" Received of Jacob O. Dyer, sheriff, two hundred and sev- 
enteen dollars and eighty-one cents, 4th of May, 1847, Hazel 
Loveless, agent for Spencer Riley." 3d. A levy and sale of 
lot No. 299 — 8 — 4, in December, 1847. 4th. A levy on lot 
No. 32—9—3, and lot No. 50—12—3, and sale of No. 50 
in October, 1848, and a dismi&sal of the levy on No. 32, by 
order of Court, October, 1849. 6th. Levy and sale of lots 
No. 251—10—3, Nos. 65 and 130—11—3, and 188—13—3, 
and sale of the lots in July, 1849. 6th. Levy on No. 
513—19—2, No. 736—19—2, No. 378—1—3, in Cobb 
cottafy, June, 1850, with a dismissal of the levy on 736 and 
513^ by order of Court, and on 378, by order of plaintiff^s 



392 SDPBEME COURT OF GEORGIA. 

Bohanan et al,j vs* Bonn. 

attorney^ April, 1861. 7th. Levy on several lots in Carroll 
county, including the land in dispute, August, 1851, and sale 
of the same in November, 1851. 

The defendant rested his case at this point. The plaintiff 
then proved by William Solomon that he was present at the 
sale of lot No. 73, 16, and 3, in Oass county, by the sheriff, 
on the 4th of May, 1847, and at that time examined said 
fi. fa. carefully, and that he was positive that the same was out 
of date, or dormant, and that the entry aforesaid of '^ no 
property to be found whereon to levy the within fi, fa." 
dated the 14th of August, 1846, and purporting to be signed 
by William H. Macarthy, sheriff, was not on the fi. fa. at 
that time. 

Plaintiff then proposed to prove, by Joel Deese, one of 
the firm of William F. Bond c& Co., that said WiUiam F. 
Bond, D. C. Gibson, and Joel Deese, the witness, composed 
said firm. The testimony was objected to, on the ground 
that the witness was interested in the event of the suit. 
The Court rejected the testimony, notwithstanding the wit- 
ness swore that he had no interest in the suit, and that he 
had been released by James Bond, which release was in 
Court. 

The defendant then proved, by Jonathan McDow, that he 
also was present at the sale in Cass county, about which the 
witness, Solomon, testified, and that he saw the said fi. fa,y 
and saw the entry of nvlla, bona which appears thereon, bat 
that he did not examine the ft, fa. with any special care. 

After the testimony and argument had closed, and ^ihe 
jury had been charged with the case, they returned a verdiot 
for the defendant, with costs of suit. 

Counsel for plaintiff then moved for a new trial, on the 
grounds : 

1st. That the jury found contrary to the evidence and 
the weight of the evidence, and that there was no sufficient 
evidence to support the verdict : 

2d. That the jury found contrary to the charge of the 
Court and the law of the case, the charge being as follows : 
^^ The defendant claimed title by virtue of a sheriff's sale of 



ATLANTA, MARCH TERM, 1861. 393 

Bohanan ei <U,, vs. Bonn. 

the land in dispute, and a deed to the same made in Decem- 
ber, 1851; that the extent of William F. Bond's interest in 
the land at the time it was sold had been put in issue, and 
the jury must look to all the evidence in order to determine 
that question ; that if William F. Bond was the entire 
owner of the lot of land, and the execution was fair and 
regular at the sale of said land, then the purchaser acquired 
a title hy virtue of the sale, and the defendant, in that case, 
oaght to recover; but if the jury should believe that Wil- 
liam F. Bond had only a partnership interest in the land, 
they must first ascertain what that interest was, and that 
that interest, whatever it was, was all that could pass by 
virtue of the sheriff's sale, and then, if they should believe 
that the plaintiff had shown a sufficient title to authorize 
him to recover, he would be entitled to recover whatever 
portion of the land was not in William F. Bond at the date 
of the sheriff's sale ; that if the fi. fa. remained at any 
time, for seven years, without a return by the proper officer, 
it was dormant, and a sale under it would pass no title, and 
if after seven years had passed without a return, and the 
entry was made and antedated, this would not give vitality 
to the execution ; but if the entry was really on the fi. fa.j 
and put there at the time it bears date, it kept it alive, and 
a sale under it would be good. To determine this question, 
the jury must look to the evidence; that the jury should 
reconcile the testimony, if they can, without imputing per- 
jury to any ; but if they could not so reconcile it, then they 
should give the greatest credit to that witness who had the 
best opportunity of knowing the facts, and the least induce- 
ment to swear falsely. 

3d. Because the Court erred in rejecting the testimony of 
Joel Deese, as before stated. 

4th. Because the Court erred in the charge to the jury, 
which precluded them from finding one-half, or any part of> 
the land in controversy for the plaintiff. 

The Court refused the new trial, and that refusal is the 
error otHnplained of. 



394 SUPREME COURT OF GEORGIA. 

Bohanan et al.j vs. Bonn. 

Fielder & Broyles, Waddell & Blance, for plaintiff 
in error. 

Hugh Buchanan, contra. 

By the Court — Jenkins, J., delivering the opinion. 

1st. The first error assigned in this record is the rejection 
of the testimony of Deese, a witness offered bj the plaintiff, 
because of his interest in the event of the suit. One of the 
deeds in plaintiff's chain of title is made to William F. Boncl 
& Co. One of the demises laid in the declaration is in the 
name of Wm. F. Bond & Co., consisting of William F. Bond, 
Joel Deese, and D. C. Gibson. Deese was introduced to prove 
that the three last named persons (of whom he is one) con- 
stituted the firm of Wm. F. Bond & Co. Deese testified that 
he had no interest in the event of the suit, *' having been 
released by James Bond," who was the last lessor of the plain- 
tiff. By plaintiff's evidence in chief, it appears that the only 
title James Bond had to the land was a deed from William 
F. Bond individually, for his interest therein, specified to be 
one half. He had no deed from Deese. From what then did 
Bond release Deese ? The interest^of Deese was derived from 
Harris ; and there is no evidence that he had ever parted 
with it. He was one of plaintiff's lessors. He was, more- 
over, for aught that appears, liable for costs. In all this 
there is legal evidence of interest, against which, the opinion 
of the witness that he has no interest, cannot prevail. 

Besides, as will appear in the sequel, the 3ole £sLct sought 
to be proven by this witness, would not (if in evidence) have 
availed the plaintiff. The evidence was properly rgecied. 

2d. It is objected, secondly, that the charge of the Court 
precluded the jury from finding one-half, or any part, of the 
land for the plaintiff. Conceding that the chaise of the 
Court had this effect, plaintiff in error has iR) reason to com- 
plain, unless it appeared that he was entitled, under the law 
and the evidence, to recover less than the whole interest. If 
so entitled, it must have been either upon the demise of Wm. 



ATLANTA, MARCH TERM, 1861. 395 

Bohanan et aZ., f». Bonn. 

F. Baad, Deese and Gibson, or upon the demise of James 
Boad. He could not have recovered upon the former : Ist. 
Because there was no evidence of title in Deese or Gibson. 
2dly. Had there been — had the evidence of Deese been re- 
ceived — the joint demise of Wm. F. Bond, Deese and Gibson, 
coald not have availed the plaintiff, because the evidence 
showed a severance of their joint interest; 1st. By the deed 
from Wm. F. Bond to James Bond. 2dly. By the sale, by 
the sheriff, of Wm. F. Bond's interest in the land. ''If a 
joint demise is laid in the declaration, evidence must be given 
of a joint interest in the lessors.'^ 2. Greenleaf on Evidence, 
sec. 317. And the evidence must show this joint interest to 
iiave existed at the commencement of the suit. 

Neither could^ there have been a recovery of a part interest 
upon the demise of James Bond, for the evidence shows that 
at the time of his purchase of Wm. F. Bond's interest in the 
premises, there was a judgment lien upon that interest in 
favor of James Bond, and that, before the commencement of 
the suit, that interest was actually sold under that judgment 
by the sheriff, and a title executed to the defendant as the 
purchaser. 

This title the plaintiff in error sought to invalidate, by 
showing that the judgment had become dormant, notwith- 
standing the entries upon the jJ. /a., showing the contrary. 
This point in the case was contested on both sides with great 
zeal. Its merit depended upon the bona fides of the follow- 
ing entry, viz : *' No property to be found whereon to levy 
this fi,fa,f this, the 4th of August, 1846. Signed William 
H. Macarthy, sheriff.*' Plaintiff introduced a witness, who 
swore that on a certain day, in 1847, he saw the fi.Ja, at 
Cassville, when and where the sheriff of Cass county sold a 
lot of land under the same fi. fa., and examined it carefully, 
to ascertain whether it had become dormant, and that the 
above entry of 4th August, 1846, was not upon it Defend- 
ant iatroduced another witness, who testified that he exam- 
ined tbe same fi. fa, on the same day, at the same place, and 
on tbe same occasion, and that the entry impeached as 
iraadvleiit was then upon it. Both witnesses stood before 



396 SUPREME COURT OF GEORGIA. 

Johnson vs. Black & Cobb. 

the jury as credible; their testimony conflicted; the jury 
predicated their verdict upon that of the witness swearing 
affirmatively^ setting aside that of the witness who swore 
negatively, (though equally credible,) and in so doing they 
followed the law. The plaintiff was not, therefore, entitled 
to recover an interest less than the whole. 

3d. We have only to consider the last exception, viz : 
that the verdict was contrary to law, the charge of the 
Court, and the weight of the evidence. Having found it 
necessary, in considering the second exception, to show that 
plaintiff had failed to prove a title to an interest less than 
the whole, and in so doing, to show that there could be no 
recovery on the demise of William F. Bond & Co., or of 
James Bond. We need only add, that as plaintiff himself 
showed title out of Bohanan, and out of Harris, (the other 
lessors,) there could have been no recovery on their demises. 
We think the verdict should not be disturbed. 

Let the judgment be affirmed. 



Riley J. Johnson, plaintiff in error, vs. Black & Cobb, 

defendants in error. 

1. A charge wholly unwarranted by the evidence, is erroneoas. 

2. A verdict, that is against law and evidence, will be set aside. 

Assumpsit, in Floyd Superior Court. Tried before Judge 
Hammond, at the July Term, 1860. 

On the 14th of June, 1855, Messrs. Black & Cobb sold to 
Riley J. Johnson fifty-three bales of cotton, being a crop lot 
of cotton, and designated as the Walker lot^ at the price ot 
ten and a half cents per pound, and at the time of the trade, 
Johnson paid in part for the- cotton $1,000 00. Acoording 
to the terms of the contract, the cotton was to be delivered in 
the city of Rome, within a reasonable time, ^t the time of 
the trade, the cottoi^ was sixty-five or seventy miles distant 



ATLANTA, MARCH TERM, 1861. 397 



Johnson va. Black & Cobb. 



from Some, under a shelter, on the banks of a creek a few 
miles from the Coosa, river. On the 14th of July, 1855, 
twenty-seven bales of the cotton. were delivered, and Johnson 
sent them to a cotton fitctor in Charleston, South Carolina, 
by whom they were sold on the 18th of August, 1855, at 
eight and a quarter cents per pound. The total weight of 
the twenty-seven bales was twelve thousand four hundred 
and fortyHBix pounds, and the aggregate price received for 
them was $1,026 79, On the 26th of July, 1855, twenty- 
six bales of the cotton were received in Rome, and tendered 
to Johnson, who refused to receive them, saying at the time, 
that he should have nothing more to do with it. Afterwards, 
Black & Cobb sent the twenty-six bales of cotton to a factor 
in Angusta, Georgia, by whom the same were sold, on the 
7th of November, 1855, at six and a half cents per pound, 
the twenty-six bales weighing twelve thousand one hundred 
and ninety-nine pounds, and were received by the factor only 
& few days previous to the sale. 

On the 2d of November, 1855, Black & Cobb instituted 
salt against Johnson, to recover the balance due for the 
cotton, according to the terms of the contract. 

From the evidence adduced on the trial of the case, it 

appeared that a crop lot of cotton was understood amongst 

«)tton buyers to be an average lot of cotton, that is, the 

larger part of it good ; that from eight to ten days was a 

reasonable time to deliver cotton 6y wagons, when the cotton 

was eighty-five or ninety miles distant from the place of 

delivery, and that two weeks was a liberal time ; that the 

value of an average crop lot of cotton in August, 1855, was 

ten and a half cents per pound; that the twenty-seven bales 

^nt to Charleston was of very inferior quality, and in a 

badly damaged condition, and that the twenty-six bales 

?ent to Augusta, was likewise of very inferior quality, and 

in 8udk a damaged condition as that the railroad company 

would aot give a receipt for it without an express statement 

that it was in ** bad order'' ; that the price, of a good crop 

lot of ooCtoo, in the city of Augusta, in November, 1855, was 

from eiglit to eight and a half cents per pound. 



398 SUPREME COURT OF GEORGIA. 

Johnson vs. Black & Cobb. 

It was also proved that the cotton in question belonged to 
the fourth class of cottons, there being but one grade below it 

The plaintiffs also proved, that eveiy exertion was made 
to hire teams and wagons to haul the cotton to Rome before 
the time that it was delivered, and that the Coosa river was 
so low that the steamboats could not run. 

It was also shown, on the trial, that cotton declined from 
its highest price in June, as much as four cents per pound bj 
the month of August. 

The presiding Judge charged the jury, (amongst other 
things,) ^Hhat the first twenty-seven bales of cotton had 
nothing to do with the case, if the jury believed they had 
been received by the defendant, and settled for by him, and 
that if it was the contract to deliver the cotton by steam- 
boat, the plaintiffs were not bound to deliver it until steam- 
boats could run," 

The jury returned a verdict in favor of the plainti£& for 
$426 00, with costs of suit, and counsel for defendant moved 
for a new trial of the case on the following, amongst other 
grounds, which the Supreme Court did not consider, to-wit: 

1st. Because the verdict of the jury was contrary to law, 
and strongly and decidedly against the weight of the evi- 
idence in the case. 

2d. Because the Court erred in the charge given to the 
jury, as hereinbefore stated. 

The new trial was refused, and that refusal is the error 
alleged. 

Underwood & Smith, for plaintiff in error. 

F. C. Shropshire, contra. 

By the Court — Lyon, J., delivering the opinion. 

1. The charge of the Court, as stated in the groand of 
the motion for new trial, that '' if the contract was that the 
cotton was to be delivered by steamboat, the plaintiff was 
not bound to deliver the cotton until steamboats could run'" 
was erroneous, because there was no evidence before the 
Court to warrant that charge. 



ATLANTA, MARCH TERM, 1861. 399 

Johnson vs. Black & Cobb. 

2, The contract between the parties, as shown by the evi- 
dence, was, that the plaintiff in the action sold to the defendant 
a crop lot of cotton, being the Walker lot of fifty-three bales, 
at ten and a half cents, to be delivered to defendant, in Rome, 
within a reasonable time. The cotton at the time was sixty- 
five or seventy miles from Rome, and had not been seen by 
defendant. According to the custom of the trade in Rome, 
it is understood that a crop lot of cotton purchased unseen is 
to be an average lot, and the larger part good. The evidence 
discloses that the cotton was not delivered, or in a condition 
to be, within a reasonable time, more than a month having 
elapsed from the date of the trade at the time when the cot- 
ton was brought to market, when two weeks would not only 
have been a reasonable, but a liberal, time. The cotton was 
not an average lot, but was of a very inferior quality, and in a 
bad and damaged condition, so much so as to depreciate its 
sale about two cents per pound below the market price of an 
average lot. There is no evidence that it was a crop lot; the 
witness said it was the Walker lot, but he does not say it 
was a crop lot. In no respect, except as to the number of 
bales, and its being the " Walker lot,'' did the cotton answer 
to the contract of the plaintiff in respect to it. The plaintiffs 
therefore, were not entitled to recover from the defendant for 
a breach of the contract that they, on their part, had not 
performed ; and the verdict of the jury in that was against 
law and the evidence, and should have been set aside by the 
Court below, and a new trial ordered. 
Let the judgment be reversed. 



400 SUPREME COURT OF GEORGIA 




Rome Railroad Company vs. Sallivan, Cabot & 

I* — 

Rome Railroad Company, plaintiff in error, vs. Sulli- 
van, Cabot & Co., defendants in error. 

1. A charge of the Court, consistent with the law and the facts of the 
case, furnishes no ground for new trial. 

2. The presiding Judge charged the jury, '' that if they believed from 
the evidence, that there was a contract to ship the cotton to Charles- 
ton, South Carolina, and the defendant failed to transport the same to 
Charleston in a reasonable time, and the plaintiffs were dami^ed by 
the delay, the defendant was liable'*: Held, that the charge was 
correct. 

8. A verdict in accordance with the law and the facts of the case will be 

maintained. 
4. A judgment of non-suit should not be awarded, where the evidence 

sustains the plaintiffs' action. 

Case in Floyd Superior Court. Tried before Judge D. F. 
Hammond, at July Term, 1860. 

The action in this case was brought by Sullivan & Cabot, 
alleging that they delivered to the Rome Railroad Company, 
a common carrier, forty bales of cotton, to be transported 
from Rome, Georgia, to Charleston, South Carolina, and that 
by reason of unnecessary and unreasonable delay in trans- 
porting the cotton, according to contract, the plaintiffs sus- 
tained damage amounting to $500 00. 

On the trial of the case the plaintiffs introduced in evi- 
dence a receipt, of which* the following is a copy, to-wit : 

" Rome, Georgia, January 10, 1851. 
" Received from Sullivan & Cabot, forty bales of cotton, 
marked as per margin, consigned to Robinson & Caldwell 

3 

(cj twelve (g^c.) seventeen O- o. seven (g*c.) four.'' 

0. 

This receipt was enclosed to Robinson & Caldwell, com- 
mission merchants and cotton factors, at Charleston, South 
Carolina, who, on presenting it at the office of the South 
Carolina Railroad Company, in Charleston, received the 
cotton as consignees. 

The plaintiffs also proved, that cotton shipped from Rome 



ATLANTA, MARCH TERM 1861. 401 

Rome Railroad Cooipaoj va, Sullivan, Cabot k Co. 

on the 10th of January ought, with diligence, to have reached 
Charleston within a week ; that thirty-nine bales of cotton 
reached Charleston on the 25th of February, 1851, and 
eight bales on the 28th of February ; that Robinson & Cald- 
well made sale of the cotton as soon after it was received as 
they could do so to advantage, that is, they sold thirty-one 
balfe on the 27th February for eleven cents per pound, eight 
bales on the 7th March for eight cents per pound, and one 
bale on the 17th April for eleven and a half cents per 
pound. 

The plaintiff further proved, that if the cotton, which 
weighed, in the aggregate, seventeen thousand four hundred 
and ninety-two pounds, had been received within a week 
from the date of the receipt of the same, by the Rome Rail- 
road Company, it could have been sold for from two and a 
quarter to two and a half cents per pound more than was real- 
ized for it, the price of cotton having declined rapidly about 
that time ; that the usual and customary mode of transacting 
business at that time was, for the consignor to forward the 
receipt for the cotton to the consignee, who, on exhibiting 
the same, and leaving it in the oflSce of the South Carolina 
Railroad Company, received the cotton. 

The plaintiffs closed their testimony at this point, and 
counsel for defendant moved the Court to non-suit the plain- 
tiffs, on the ground that the evidence did not sustain the 
action. The Court overruled the motion, and defendant 
excepted. 

On the part of the defendant, it was shown, that the delay 

in shipping the cotton from Rome was owing to the great 

accumulation of cotton on the platform, want of cars to 

move it off, and the inability of the Western and Atlantic 

Railroad to carry it away from Kingston, which is the termi- 

uus of the Rome Railroad, and that the plaintiffs were aware 

of these &cts, and were allowed to place their cotton on the 

platform, to be shipped in its turn, which came round in 

about twenty days from the time it was placed there. The 

ilefiodant also proved, that it was notorious in Rome, that 

cotton ooold not be shipped promptly, and offered much 

Vou xxxsx—26. 



402 SUPREME COURT OF GEORGIA. 



Borne Railroad Company vs, Sullivan, Cabot & Co. 

other testimony to excuse and palliate the failure to send the 
cotton away in due time. 

Tlie presiding Judge charged the jury^ amongst other things . 
'* that they had a right to take into consideration the brief 
receipt, offered in evidence by the plaintiffs, with all the 
facts in the case, to show that the defendant entered into a 
special contract to carry the cotton either to Charleston ^ 
to Augusta, and that they would have a right to find, that 
such special contract was made, provided all the facts would 
prove it, and that if they believed, from all the evidence, that 
there was a contract to ship the cotton to Charleston, South 
Carolina, and the defendant failed to ship and transport it 
accordingly within a reasonable tim^, and the plaintiffs 
were damaged by the delay, the defendant was liable/' 

The Court further charged the jury : " that to entitle the 
plaintiffs to recover upon the contract to Charleston, they 
must prove such contract to carry to Charleston, and that to 
entitle the plaintiffs to recover upon a contract to carry to 
Kingston, they must prove the damages that occurred by a 
failure to carry to Kingston within a reasonable time." 

The defendant's counsel requested the Court to charge the 
jury: 'Hhat if the Rome Railroad Company had sufficient 
cars, whether rented or not, to do their business, that that 
was all could be required of them, provided they did the 
business required. 

The jury returned a verdict in favor of the plaintiffs for 
$393 57, with costs of suit, and counsel for defendant moveil 
for a new trial, on the following grounds : 

1st. Because the jury found contrary to evidence, and 
contrary to law, and that the verdict was strongly and 
decidedly against the weight of the evidence. 

2d. Because the Court erred in not awardfng a non-sait, 
as before stated. 

3d. Because the Court erred in giving the charge first 
hereinbefore stated. 

4th. Because the jury found contrary to the charge, 
secondly hereinbefore stated. 

5th. Because there was no evidence of any damage, by the 



ATLANTA, MARCH TERM, 1861. 403 



Rome Railrond Company rs. Sullivan, Cabot & Co. 

failure to carry to Kingston, and there was no evidence of a 
contract to carry to Charleston. 

6th. Because the Court erred in refusing to give the 
eliarge requested, and hereinbefore stated. 

The presiding Judge overruled the motion and refused the 
new trial asked for, and the plaintiff in error seeks, by his 
writ of error, a reversal of that judgment. 

A. R. Wright and D. S. Printup, for plaintiff in error. 

J. W. H. Underwood, contra. 

By tlie Court — Jenkins, J., delivering the opinion. 

This is the second appearance of this case in this Court, 
and each writ of error was preceded by a verdict for plain- 
tiff in the Court below. 

At the former hearing in this Court, the judgment below 
was reversed, on the ground that the plaintiff in the action 
liiid alleged a special contract to transport the cotton to Charles- 
ton, South Carolina, and had proven a contract to transport it 
to Augusta, Georgia. This Court then held " that the Rome 
Railroad Company has a right, under the powers granted by 
its charter, to contract to deliver produce at a point which 
f-an only be reached by passing it over connecting roads," 
afld thus settled a very important question in the case. After 
the return of the case for a re-hearing to the Court below, 
the plaintiffs amended their declaration by adding a count 
up)n a contract to transport the cotton to Augusta, Georgia, 
and deliver it to the agent of the South Carolina Railroad, and 
also an averment that they had been injured by a delay of 
twenty-one days in the shipment of cotton from Rome to 
Kingston. From a comparison of the report of the case, in 
2 5th Georgia Reports, 228, and the record now before us, it 
appears that the evidence adduced on the last trial varies 
materially from that in the first. We see in the record now 
' : Are ub no evidence of a contract to transport to, and de- 
liver at, Augusta, but there is evidence of a contract to 
transport and deliver at Charleston. The error now assigned 



404 SUPREME COURT OF GEORGIA. 

Rome Railroad Company vs. Sullivan, Cabot & Co. 

is, the refusal of the Court below to grant the plaiutiiT in 
error a new trial on the grounds assigned in this motion 
which we proceed to consider. 

Ist. We see no error in the charge of the Court to the 
jury, "that they might consider the receipt of the Kome 
Railroad Company, together with all the facts of the case, to 
ascertain whether the defendants entered into a special con* 
tract to carry the cotton either to Augusta or to Charleston, 
and that the jury would have the right to find that such a 
contract was made, provided all the facts of the case, taken 
together, would prove it." 

What is meant by " a special contract," as that term is 
used, in the opinion of the Court, in 25th Georgia Reports, 
228, and in the charge of the Court below ? Certainly not 
a contract by specialty, for it is not pretended that such an 
one was made in this case; and for the same reason not a 
contract in writing, clearly and distinctly setting forth the 
understanding between the parties. By the last paragraph 
of the opinion before cited, it is manifest that by the term 
"special contract" this Court meant a contract to carry the 
cotton to some point beyond the terminus of the road belong- 
ing to the plaintiffs in error. The receipt, itself, is in the 
following words : 

" Rome, Georgia, January 10, 1851. 
** Received from Sullivan & Cabot, forty bales of cotton, 
marked as per margin, consigned to Robinson & CaldweU 

3 

(cj "tw-elve (sIc.) seventeen o. o. seven (g.'c.) four." 

0. 

It will be perceived that this receipt is exceedingly meagre, 
doubtless perfectly intelligible to the parties contracting, but 
not at all so, without further evidence to a stranger to the 
usages of that trade. The place of delivery is not mentioned 
in it. The carriers acknowledge, in effect, that they received 
it, to be delivered to Robinson & Caldwell, and the l^al 
inference would be, to be delivered at their place of busi- 
ness: but recourse must be had to aliwnde evidence to 



ATL/VNTA, MARCH, TERM, 1861. 405 

Rome Railroad Company vs, Sallivan, Cabot k Co. 

ascertain whether that place be KiDgston^ Atlanta^ Augusta 
or Charleston. It is not specified within what time the cot- 
ton should be delivered to the consignees. 

The law implies a reasonable time; but aliunde evidence 
must be invoked to show what is a reasonable time. It is 
not clearly expressed in the receipt whether or not the con- 
signor had to perform any other act, on the line of trans- 
portation, to insure the arrival of the cotton at its ultimate 
destination, nor upon what showing the consignees might 
claim the cotton when so arrived; but aliunde evidence 
brings out the usage and custom governing the business. It 
establishes the fact that, conforming to that usage and cus- 
tom, the consignees at Charleston presented this identical 
receipt, which the first carrier on the line executed and de- 
livered to the consignor, at the de|K)t of the last carrier on 
the line, and upon the faith of it alone, received the cotton. 
All these facts were in evidence, and they elucidated the 
meaning and effect of the receipt as understood by the par- 
ties. The charge of the Court very correctly instructed the 
jury to consider these facts in connection with the receipt, in 
making up the verdict. 

2d. The correctness of the charge "that if the jury believ- 
ed, from the evidence, that there was a contract to ship the 
cotton to Charleston, South Carolina, and the defendant 
failed to transport the same to Charleston in a reasonable 
time, and the plaintiffs were damaged by the delay, the 
defendant was liable," is too apparent to admit of argument. 

3d. Having carefully considered the evidence in the case, 
and the law arising upon it, we are quite satisfied that 
violence is done to neither, nor yet to the third item in the 
charge of the Court, by the verdict. 

4th, It is scarcely necessary to add, that we think the 
motion for a nonsuit was properly refused. There have been 
three concurring verdicts in this case. The second was set 
aside upon a technical rule, to which the last is not obnox- 
ious. We think they all accord with justice, and that litiga- 
tion between the parties should cease. 

IM the judgment be affrmed. 



406 SUPREME COURT OP GEORGIA 

Little V8, Carmichael. 

Hakvey Little, plaintiff in error, vs. Richard H. Car- 
michael, defendant in error. 

1. Where a motion is made for a continuance, which is denied hy the 
Court, and afterwards the witness comes into Court, and testifies in 
the case, the refusal to continue is no ground for a new trial. 

2. The damages, in this case, are not excessive. 

8. Where a verdict is for a less sum than the plaintiff was entitled to 
under the facts of the case, the defendant has no legal ground to com- 
plain of it. 

Trespass vi et amviSy in Coweta Superior Court. Tried 
before Judge Hammond, at the September Term, 1860. 

This action was brought by Carmichael against Little, to 
recover damages for an assault and battery, committed by 
defendant on the person of the plaintiff. 

The jury that tried the case rendered a verdict in favor of 
the plaintiff for four hundred dollars damages, and defend- 
ant moved for a new trial on several grounds, the substance 
of which is stated in the opinion of the Court, one being the 
refusal of the Court to continue the case when asked br 
defendant, another being the refusal of the Court to charge 
the jury as set out in the opinion of the Court, another 
being the refusal of the Court to dismiss the appeal, and 
another being that the damages are excessive, and another 
that the verdict was against the evidence in the case. 

The presiding judge refused the new trial, and that refusal 
is the error complained of. 

The facts are very fully stated in the opinion of the 
Court, to which the Reporter begs leave to refer. 

John W. Powell, for plaintiff in error. 

Buchanan & Wright, for defendant in error. 



ATLANTA, MARCH TERM, 1861. 407 

Little vs. Carmichael. 

By the Court. — Lumpkin, J., delivering the opinion. 

There are two preliminary questions in this case; one as 
to the sufficiency of the showing for a continuance, the other 
as to the appeal. Without considering the grounds for a con- 
tinuance, it is enoMgh to know that the witness, on account 
of whose absence the cause was sought to be continued, came 
in afterwards, and after the Court denied the motion, and 
was sworn-r-and, by the way, the case was continued on 
account of the absence of this witness at the preceding term. 
As to the appeal, the facts assumed do not exist. It pur- 
ports to be what the record shows it is — ^an appeal from a 
confession of judgment. 

What are the facts of this assault and battery? Little 

came into Carmichael's shop and attempted to saw some 

hounds for a wagon with a saw that was too fine for that 

purpose — the piece of timber fell from the bench — the plaintiff 

kindly picked it up, and remarked to the defendant that the 

saw was too fine, and pointed him to one hanging up in the 

shop, which he advised him to use — the piece of timber fell off 

again, when the defendant angrily swore that he would saw 

it with that saw. Plaintiff, who was a good natured drinking 

man, quizzingly remarked : "You had better saw my head 

off," and stooped down to pick up the piece of timber a 

second time, and raising up, the defendant struck him 

with the saw, cutting the bone of his nose through, between 

his eyes, so that he breathed through the wound instead of 

his nostrils; cut off a portion of his lower eyelid, and split 

his cheek to the bone. The plaintiff bled profusely. The 

defendant coming to. the shop door, remarked that he had 

done what he threatened to do. 

The Court charged the jury, that if they believed, from 
the testimony, that Carmichael's stooping down to pick up the 
piece of timber for Little, was calculated to excite the fears 
of a reasonable man, that he intended to inflict on Little a 
serious personal injury, Little had a right to strike the 
defendant, or to do anything necessary to prevent the plain- 
tiff from striking him, viz: to cut off his nose, eyel'''' 



-_ J 



408 SUPREME COURT OF GEORGIA. 



Little V8. Carmichael. 



split his cheek to the bone — means very appropriate to self- 
defence. 

It is well that the verdict was for the plaintiff^ as this 
charge would have insured a reversal. 

There was not a scintilla of proof, nor the pretence of 
any, that Carmichaers purpose or intention was hostile to 
Little. There was no evidence, therefore, to justify such a 
charge, and yet it was given at the request of defendant's 
counsel. 

The Court charged the jury, at the request of defendant's 
counsel, that the plaintiff CQuld not recover for any suffering 
brought on himself by his own intemperance or imprudence. 
I am willing to let this pass, while I am not prepared to 
indorse it. Suppose I am given to excessive eating or 
drinking, and a ruffian, without the slightest provocation on 
my part, inflicts divers grievous wounds upon me, which 
are aggravated by my habits or the stai.e of my system, can 
he plead this in mitigation of his diabolical conduct? I 
should think not. 

The defendant's counsel requested the Court to charge, 
that if the circumstances were such, and the position of the 
parties showed that it was accidental that the defendant 
struck with the edge of the saw, and that he had no inten- 
tion of inflicting a serious injury, that that was a fact in 
mitigation of damages, and that if they believed this to be 
true, the defendant was not liable any further than for care- 
lessness in striking the blow. 

This, the Court very properly refused to charge. What 
testimony shows that the defendant did not intend to strike 
with the edge of the saw ? None. The defendant's coansel 
has imagined a theory of defense for his client, and he seeks 
to avail himself of it in the absence of all evidence to sup- 
port it. But suppose the facts to be as suggested ; that the 
defendant designed using the side of the saw, and that the 
plaintiff^ by rising suddenly, received the blow on his face, 
instead of the back of his head, does this lessen his suffer- 
ings? Is not the injury the same? Because the plaintiff, 
not aware of the defendant's hostile demonstrations, rose too 



ATLANTA, MARCH TERM, 1861. 409 

Battram vs. Jackson. 



suddenly with the piece of timber to replace it upon the 
bench for him, as he had done once before, and thus received 
the blow upon his face instead of his head, is the demon who 
assaulted him to be excused under the plea of carelessness? 

It is complained in the motion for a new trial, that the 
verdict is against evidence, and so we think. It ought to 
have been doubled, and then it would not have been exces- 
sive. Deducting every item claimed by the defendant, and 
it leaves the verdict much too small to compensate for the 
injury, the wound, the disfiguration, the maiming. 

A more bold and aggravated case, of the indulgence of 
angry passions, of lawless violence on the person of a peace- 
able and unoffending man, has never been before this Court, 
or one that calls more loudly for the vindicatory power of 
the law. 

Let the judgment be affirmed. 



A. J. BuTTRAM, plaintiff in error, vs. Ira G. Jackson, 

defendant in error. 

L When the solvencj or insolvency of a particular person is the qnes- 
tion afcissue, writs o£ Jieri facias against him are admissible in evi- 
dence, alihongh the fi. fas, contain an entry of the sale of property, 
aud that the proceeds of the sale.were'applied to ** older fi. fas.,^^ 
without specifying to what *' older ^. /aw." the money was so applied. 

^' What parties say at the time of making up a settlement of accounts 
between them, as to the amount due from the one to the other, is a 
part of the res gestcs, and admissible in evidence. 
3. It is error in the presiding Judge, in charging the jury, to assume 

that any fact in dispute between the parties has been proved. 
^' W'here the verdict is strongly and decidedly against the weight of the 
evidence, a new trial will be granted. 

Afisiunpsit, in Carroll Superior Court. Tried before Judge 
Hammojjd, at October Term, 1860. 

The questions in this case arise out of the following state 
<jf facts: 



410 SUPREME COURT OF GEORGIA. 

Buttram vs, Jackson. 

■-. II - — 

Some time in December, 1857, Ira G. Jackson 8old to 
Andrew J. Buttram a mule, and received in payment there- 
for two promissory notes, given by one D. H. Harris, one of 
the notes dated 10th November, 1857, and due twelve 
months after date, payable to said Buttram, or bearer, for the 
sum of $30 00 ; the other, dated 22d October, 1857, and 
due 25th December, 1858, payable to Martha McElreath, or 
bearer, for $40 00. 

On the 22d January, 1859, Jackson instituted suit in Car- 
roll Superior Court, against Buttram, to recover the value of 
the mule, alleging, in one count of his declaration, that 
Buttram, at the time of the trade, warranted the notes to be 
good, and that Harris was perfectly solvent, and that if the 
notes were not paid by Harris at their maturity, he, Buttram, 
would pay the amount due on the same, whereas, in truth 
and in fact, Harris was insolvent at the time, and afterwards 
absconded, and went to parts unknown. 

The defendant pleaded the general issue. 

On the trial of the case, the notes were introduced, and it 
was shown by the evidence that plaintiff had demanded from 
defendant payment of the notes before the suit was brought; 
that defendant admitted that he traded the notes as good 
notes; that at the time of the trade, Harris owned land 
worth from $600 00 to $800 00 ; that levying officers had 
been to Harris's, with fi, fas. against him, in search of prop^ 
erty, but could find none, and that the fi. fas. were subee^ 
quently paid off; that Harris was deemed solvent by many 
who knew him, although there were some judgments agains 
him; that Harris, through the defendant, received a li^c 
of some $700 00, in the Fall of 1857 ; that when the trad 
was made, Jackson, holding the notes in his hand, socretl 
requested?a bystander to take notice of what he ^^as goiu 
to say to Buttram, and the reply of the latter ; that Jael 
son asked Buttram if the notes were good, and told hi 
that lie must indorse them, to which Buttram replies 
that he would not indorse them, that he had been bit th: 
way too oflen, and that Jackson must take the notes at \\ 
own risk. The defendant proposed to prove by a Mritness vrl 



ATLANTA, MARCH TERM, 1861. 411 

Butt ram V8, Jackson. 

was present^ that in the Fall of 1857, a settlement of accounts 
was made between Buttram and Harris, and that the parties 
»a.id, at the time that Buttram was due to Harris the sum 
of $200 00, that the settlement included the legacy which 
ITarris received through Buttram as his attorney. Counsel 
for plaintiff objected to so much of this testimony as related 
to the.sayings of the parties as to the amount due Harris, 
and the objection was sustained by the Court, and the testi- 
mony rejected, and defendant excepted. 

Plaintiff, in rebuttal, offered in evidence two Ji. fas. against 
Harris, one dated in May, 1858, and one in September, 1868, 
npon which there was an entry of a levy on a lot of com, 
and a further entry that the corn was sold for $80 00, and the 
money applied to " older ^. fas. This testimony was objected 
to, on the ground that the entry on the fi. fas. did not speci- 
fy the ** older^./a«.," to which the money was applied, but the 
Court overruled the objection, and admitted the fi. fas, in 
evidence, and defendant excepted. 

When the testimony and argument had closed, the presid- 
ing Judge charged the jury, ** that if the defendant told the 
plaintiff, at the time of trading him the notes on Harris, that 
he considered Harris good, but that he would not be bound, 
yet he was bound, if Harris was not good at that time, if 
Jackson took the notes on such representation, although there 
was no guaranty by defendant to stand good for the notes^ 
the notes being taken by Jackson, who was ignorant of the 
condition of Harris at the time, and whose condition was 
known to Buttram.'' 

The jury returned a verdict in favor of plaintiff for 
$79 05, it being the principal and interest due on the notes. 
Counsel for defendant then made a motion for a new trial, 
in dae form, on the grounds following, that is to say : 

1st. Because the Court erred in admitting the two fi, fas, 
aforesaid, with the entries thereon. 

2d. Because the Court erred in rejecting the testimony as 
to what Harris and Buttram said, whilst they were engaged 
in making a settlement. 



41,2 SUPREME COURT OF GEORGIA. 

Buttram vs. Jackson. 

3d. Because the Court erred i'h his iustructioDS to the 
JU17, as before set forth. 

4th. Because the verdict was contrary to the evidence, and 
to the weight of the evidence, and contrary to law. 

The presiding Judge refused the new trial^ aad that deci- 
sion is complained of as error. 

Thomas Chandler, for plaintiff in error. 

Black & Wooten, W. W. & H. F. Mebrell^ oont'a. 

By the (hurt. — Jenkins, J., delivering the opinion. 

If either of the grounds upon which a new trial was 
asked was tenable, there was error in overruling the motion. 
We do not think the Court below erred in admitting the fi. 
fas. against Harris. One of the facts in issue was the insol- 
vency of Harris. All evidence of his indebtedness, at that 
time, was material to the issue. Insolvency results from the 
excess of indebtedness above means to pay. Hence, when 
that is the issue, evidence of indebtedness was just such as 
it behooved the party maintaining his insolvency to offer. 
For a like reason, we think, the Court erred in ruling out 
evidence of what was said by plaintiff in error and Harris, 
at the time of a settlement between them, of which there 
was evidence before the Court. The evidence of that settle- 
ment was to show means in the possession of Harris, to rebat 
the inference of insolvency, that might be drawn from the 
fact that there were executions open against him; but to ns 
it seems, that to give this evidence full force, to make it 
entirely intelligible to the jury, those sayings should have 
been received. They were part of the res gesUs ; they went 
to show how much was received by Harris in that settle- 
ment, and in what received. It would have contributed to 
show the extent of his means, and thus aid in elucidating 
the question of solvency or insolvency. 

Error was further assigned, in the grounds of the motioii 
for a new trial against the charge of the Court as set forth 
in the statement. 



ATLANTA, MARCH TERM, 1861. 413 

Buttram V8, Jackson . 

In that charge the presiding Judge deemed it necessary, in 
Jer to fiicilitate the application of the law by the jury to 
e case, to advert to certain facts claimed by one party to 
ve been proven, but the proof of which was denied by the 
ber. This practice is not objectionable ; indeed, it is some- 
nes necessary, to enable the jury to understand clearly the 
lation existing between the law and the facts of the case ; 
it the utmost caution should be observed to guard the jury 
;ainst the inference, that the Judge considers any disputed 
ct to have been proven. 

Juries are usually very open to influence from the Bench, 
id it is right that they should be so; but that influence 
loald never be extended to their conclusions, in matters of 
.ct« A careful analysis of the charge under review makes 

apparent that the Judge put his reference to some of the 
icts hypothetically, hs "if the defendant told the plaintifl^," 
:c., " if Harris was not good at that timis," etc., whilst his 
^ference to other facts was in terms which assume that they 
rere incontestably proven, as " Jackson, who was ignorant 
f the condition of Harris, at the time, and whose condition 
-as Icnoton to Buttram," etc. The hypothetical is the proper 
jrm of putting facts in such cases, because it distinctly puts 
he jury on the inquiry as to those facts; but in relation to 
xhev facts, put positively l^fore them, put as facts ascertained 
n the same connection, in the same sentence, they are much 
CSS apt to feel the necessity of inquiry. Indeed, these 
liflerent modes of treating diflerent facts, would seem to 
rive a double assurance, that they are relieved from the 
necessity of scrutinizing the evidence for the proof of some 
>f them: Ist. Because the Judge has treated them as 
>roven. 2d. Because he has cautiously treated others as 
loubtful. We think there was error in this. Moreover, 
Ere cannot resist the conclusion that the verdict is against the 
vveight of the evidence. The insolvency of Harris, and the 
knowledge of it by the plaintiff* in error, at the time of the 
trade between the parties, are facts necessary to the support 
of the verdict. We think the weight of evidence is. strongh 
and decidedly in favor of his solvency at that time, a 



414 SUPREME COURT OF GEORGIA. 



Hicks et al. j vs. Foster and Philpott. 



still more so against any knowledge of such insolvency by 
Buttram. 

The judgment of the Court, therefore, must be reversed 
and a new trial ordered. 

Let the judgment be reversed. 



John N. Hicks et al,, plaintiffs in error, vs, Ignatius G. 
Foster and David Philpott, defendants in error. 

1. Upon the petition of sundry citizens, and the report of Reviewers 
duly appointed) the Inferior Court established a public road— two 
other citizens complained, that they were damaged by reason of the 
road running through their lands — a general order was passed, directing 
the Sheriff to summon a jury of freeholders, to assess the damages in 
terms of the law— the jury was summoned and impannelled, but failing 
to agree, were discharged — the Sheriff, without other or further order, 
summoned a second jury, who, being impannelled, assessed the damv 
ges : Hdd^ That the proceeding was legal and proper. 

Certiorari, in Heard Superior Court. Decided by Judge 
D. F. Hammond, at the September Term, 1860. 

Mr. Justice Lyon embodies the facts of this case in the 
opinion of the Court delivered by him. 

Mabry, for plaintiff in error. 

No appearance contra. 

By the Court. — Lyon, J., delivering fhe opinion. 

James Rames, Charles B. Duke, and others, petitioned 
the Inferior Court of Heard, sitting for county par{K>ses, to 
have opened a public road leading from the Franklin and 
Liberty Hill road from or near to where William H. Owen 
formerly lived, to Bur well Buttrell's Mills, and thence on 
to John Bard's. This petition was granted by the Inferior 
Court, on the 6th day of March, 1860, and Reviewers ap- 
pointed to review, and make out and report upon the prac* 
ticability and utility of said road, who, having perfbrtn- 



ATLANTA, MARCH TERM, 1861. 415 



Hicks et aL , vs. Foster aud Philpott. 



the daties required of them, reported in favor of said 
ad. The Inferior Court,, on the 5th of June, 1860, and 
>on the hearing of the report, ordered that said road be 
tablished, and made a public road. Subsequently, and on 
e same day, David Philpott complained that said road, so 
tablished, went through a portion of his unenclosed land, 
)d prayed that a jury of freeholders should be summoned 
I view and assess the damages accruing to said land. Igna- 
us G. Foster, also, complained that he was damaged by the 
inning of said road over his enclosed land, and he prayed 
le ordering of a jury to view and assess the damages that 
light be done to him by said road, both of which petitions 
ere granted aud a general order passed in each case, of 
hich the following is a copy : 

"Let the order issue to Sheriff to summon jury of free- 
olders to assess damages, in terms of the statute, in such 
a,-es made and provided." Signed by the Court, 

A fiat was issued by the Clerk of the Court to the sheriff 
ti pursuance of this order, and the sheriff, in obedience 
hereto, summoned a jury of freeholders, who assembled on 
he 30th of June, 1860, to assess the damages. This jury, 
xmsisting of Walker Dunson and others, failed to agree on 
he damages, and were discharged. The sheriff, before mak- 
ng return of action of this jury, summoned another jury, 
consisting of Thomas Vaughan and others, who assembled 
m the 7th of July, 1860, and upon due consideration, 
assessed the damages done to the unenclosed land of David 
Philpott, by the running of the road over the same, at $15 00, 
and to the enclosed land of Ignatius G. Foster, at the sum 
i/f $150 00, and the action of such jury, as was also the 
failure of the first jury to agree, were duly and properly re- 
ported to the Court. 

The Inferior Court, at the July Term of said Court, upon 
consideration of said report, set aside the verdict of the jury, 
on the grounds that they had been summoned by the sheriff 
without authority, and ordered that the sheriff proceed to 
summon another jury of freeholders to assess damages, etc. 
The petitioners excepted to the ruling of the Inferior Court 



416 SUPREME COURT OF GEORGIA. 

Hicks et aZ., vs, Foster and Philpott. 

in refusing to receive the return of the sheriff and jurj, and 
setting aside said verdict, and applied to the Superior Court 
of said county for a writ of certiorari to review and reverse 
said judgment, and upon the hearing of said application, at 
the September Term, 1860, the Judge of said Court presid- 
ing, afi&rmed the judgment of the Inferior Court, and dis- 
missed the certiorari. To this decision petitioners for the 
road excepted, and bring the same for review before this 
Court by bill of exceptions. 

The only question in the case is, whether the summoning 
of the second jury to assess the damages, the first having 
failed to agree, without a second order from the Court, was 
irregular and illegal ; for that is the only complaint made to 
their verdict. We think that it was not. The order was a 
general one to summon a jury to assess the damages; the 
thing to be done was the assessment of the damages by a 
jury of freeholders. The first jury failed to accomplish the 
purpose for which they assembled. The order was still open 
and unsatisfied ; still operated upon the sheriff as a command, 
and the passage, by the Court, of a new order to him to do 
the same thing would have been an unnecessary and useless 
form, without any substance whatever. The writ of certio- 
rari should have been allowed, and the Inferior Court of 
Heard county directed to review their judgment, and receive 
and execute the verdict of the jury as reported to them 
by the sheriff, in the absence of any other valid objection to 
the same under the statute authorizing and requiring that 
proceeding. 

Let the judgment be reversed. 



ATLANTA, MARCH TERM, 1861. 417 

McGregor and Matthis vs, Matthis and Shelton. 

5. D. McGb£GOB and J. H. Matthis, assignees of Ji. fa., 
plaintiffs in error, V8. E. W. Matthis, defendant in fi. fa., 
and Martin Shelton, claimant, defendants in error. 

I. C. sold to S. a lot of land, and'took a negotiable promissory note for 
the pacehase money, giving to S. his bond for titles. G. sold the note 
for a Talaable consideration, and withoat recourse on himself, to F. 
and L. After the transfer of the note, a judgment was rendered 
against C, which was levied on the land : Held, That the land was 
not subject to the lien of the judgment. 

Fi,fa. and claim, in Paulding Superior Court, and decision 
by Judge Hammonj5, at the February Term, 1861. 

The facts of this case are as follows, to-wit : 
On the 6th day of March, 1858, Crumpton, one of the 
defendants in fi.fa.^ sold the land levied on, to-wit: lot No. 
1287, In the third district of the third section, to the claim- 
ant, Shelton, and took Shelton's negotiable promissory note 
for the purchase money, (^600 00,) to become due the 25th 
December, 1868, and executed to Shelton his bond for titles. 
On the 14th of May, 1858, Crumpton sold the note to Eli- 
jah M. Field and Smith Lemon for a valuable consideration, 
and without recourse or liability over against himself. On 
the 21st of May, 1858, the judgment under which the land 
Nvaa levied on was rendered, and on the 27th of July, 1858) 
Crumpton executed a deed to Shelton for the land, and took 
up his bond, and after that time Shelton paid off the note in 
full. Shelton was a co-surety, with the assignees of the 
f' fa., on the original notes, which were the foundation of 
the judgment and J?. /a. levied, and that judgment was ren- 
dered against the assignees as well as the other defendants, 
and that the assignees paid off the judgment, took control of 
the same, and had it levied on the land. 

Upon this state of facts, agreed to by the counsel of the 
parties, the presiding Judge decided that the land was not 
Hubject to the lien of the judgment, and that decision is the 
CTTor alleged. 

Geo. N. Lester, for plaintiffs in error. 

W. W. & BL F. Mbrbell, contra. 
Vo^,. XXXII— 27. 



418 SUPREME COURT OF GEORGIA. 

Allen vs. Holden. 

By the CouH, — Lumpkin, J., deliveriDg the opinion. 

From the time that Crumpton transferred the note to 
Field and Lemon, he ceased to have any interest in the land, 
(Tompkins vs. Williams, 19th Ga. Reports, 569,) and the 
deed being executed to Shelton afterwards, can make no 
difference. In the case of Ware against Jackson, (19th 
Georgia Reports, 452,) one of the Court who gave the major- 
ity opinion in that case, said, '^ Had the note been transferred 
by Baker, (Che vendor,) for a valuable consideration, to a 
bona fide holder, the case would have been different." In- 
deed, in the case supposed, the Court would doubtless have 
been concurrent. That is this case. 

Let the judgment be affirmed. 



Larkin a. Allen, plaintiff in error, w. Matthew J. 

Holden, defendant in error. 

1. The answer of one defendant to a bill in equity can not be read 
as evidence against his co-defendant. 

2.' A witness who is interested in a recovery by the party calling him, is 
an incompetent witness for such party. 

8. A deed is improperly admitted to record on the probate of a sub- 
scribing witness, who simply states that he saw the feoffor '' assign the , 
deed for the purposes therein mentioned ; also, he assigned the same J 
as a subscribing witness." 

4. A deed, not recorded within twelve months from the date of its execa 
tion, will not take precedence of another title from the same vendor 
based upon a bond for titles, and the payment of the purchaae, of 
which the feoffee in the deed had notice. 

Bill in Equity, in the Superior Court of Carroll countr. 
Tried before Judge Hammond, at the October Term, 18G0« 

The record in this case presents the facts and questioiM 
following, viz.: I 

In the year 1828 or 1829, John Catlett, the drawer, solJ 
lot of land No. 3, in the 6th district of Carroll ootmty, J 



ATLANTA, MARCH TERM, 1861. 419 

Allen vs, Holden. 

Martin Berry, and received the purchase money, and gave 
Berry his bond to ezecate a title when the grant shonld be 
taken out. Afterward, Martin Berry sold the land to Jesse 
Berry, received the purchase money, and executed a bond for 
titles. In April, 1836, Jesse Berry sold the land to John 
Dobeon, and gave his bond to make titles when Dobson 
should obtain the grant, Dobson paying the purchase money 
at the time of the trade. On the 14th of March, 1839, 
Dobson sold the land to Matthew J. Holden, received the 
purchase money, and transferred by written assignment the 
bond of Jesse Berry to Holden. 

On the 14th of November, 1843, John Catlett, the drawer, 
sold the lot of land to. Larkin A. Allen, and executed a 
deed of that date to Allen, which deed was attested by 
Larkin Allen and A. E. Bond, as witnesses, and was regis- 
tered on the Ist day of November, 1844, upon a probate by 
Larkin Allen, who stated in his affidavit on the deed, " that 
he saw John Catlett assign the deed for the purpose therein 
mentioned ; also, he asnigned the same as a subscribing wit- 
ness.^' On the 9th of September, 1848, the deed was again 
registered upon a proper and legal probate by both of the 
subscribing witnesses. 

On the 12th of August, 1845i)^ Holden bargained the land 
to Lewis Barton, who went into possession of the same, and 
being unable to pay for the land, the contract of sale was 
reminded, and he continued in possession as the tenant of 
Holden. 

Allen brought an action of ejectment for the land, against 

Barton, returnable to the April Term, 1847, of Carroll 

Superior Court. Barton filed a bill in equity against Allen 

and CSatlett, setting up the equitable title and claim herein- 

l^efore stated, alleging that Allen bought the land with full 

notice of such equitable title, and prayed an injunction 

against the action of ejectment until the hearing of the bill. 

This bill was subsequently dismissed, and on the 6th of 

'July, 1853, Holden filed a similar bill, alleging the same 

£stctB wad praying the same injunction. 

Upcm the trial of this bill, the complainant offered in 



420 SUPREME COURT OF GEORGIA. 

Allen V8, Holden. 

evidence the separate answer of John Catlett, to the bill filed 
by Barton against Allen and Catlett, for the purpose of 
showing that Allen bought the land from Catlett with a full 
knowledge of the prior sale by Catlett to Martin Berry, and 
of complainant's equitable claim and title to the land. 
Counsel for defendants objected to this evidence, on the 
ground that the answer of a co-defendant, who has no 
interest in the suit, in a former bill, filed by a diflPerent com- 
plainant against these defendants, could not be read in evi- 
dence, to charge his co-defendant, Allen, with notice. The 
Court overruled the objection, admitted the evidence, and 
defendant excepted. 

Pending the trial, complainant offered in evidence the 
depositions of Jesse Berry to prove the facts alleged in 
the bill, to which counsel for the defendant objected, on 
the ground that the depositions disclosed the fact that the 
witness was interested in the suit, the title to the land 
having passed through him. The Court overruled the 
objection, and admitted the testimony, to which defendant 
excepted. 

Plaintiff also proved by a witness that Allen admitted to 
witness that he knew of the outstanding claim of complain- 
ant when he bought the land from Catlett. 

The answers of Allen and Catlett were read, and contained 
a denial of the material allegations of the bill. 

The deed from Catlett to Allen, and the bond from Jesse 
Berry to Dobson, with the assignment of the same to Holden, 
were also in evidence, and it was shown that the other bonds 
for titles were lost ; that due search had been made for them, 
and secondary evidence of their contents admitted. 

There was much other, evidence admitted, which it is 
unnecessary to set out in this statement. 

Amongst other things, the presiding Judge charged the 
jury, *'that unless the defendant's deed was regularly recorded 
within twelve months, it could take no precedence tinder the 
Registry Act." 

The jury returned a verdict for the complainant, and 
defendant moved for a new trial on the grounds : 



ATLANTA, MARCH TERM, 1861. 421 

Allen vs, Holden. 

1st. Because the jury found contrary to law, contrary to 
the evidence, and contrary to the weight of evidence. 

2d. Because the Court erred in admitting in evidence the 
answer of Catlett to the bill filed by Barton, as hereinbefore 
set forth. ' 

3d. Because the Court erred in admitting the depositions 
of Jesse Berry as heretofore stated, he being interested in 
the result of the suit. 

4th. Because the Court erred in charging the jury as 
aforesaid. 

5th. Because the Court also charged the jury that a pro- 
bate to a deed was insufficient to admit it to record, when 
the probating witness failed to state, in his affidavit of pro- 
bate, that he saw the other subscribing witness also sign the 
deed, complainant's counsel having permitted the deed to go 
in evidence for what it was worth, and the deed having been 
properly probated thereafter.. 

The Court refused the new trial, and that refusal is the 
error assigned in the bill of exceptions. 

Burke & Black, and G. J. Wright, for plaintiff in 
error. 

B. D. Thomason and Latham, contra. 

By the Court. — Lyok, J., delivering the opinion. 

Larkin A. Allen commenced an action of ejectment in the 
Superior Court of Carroll county, for lot of land number 
fbree, (3,) in the sixth district of that county, against Lewis 
Barton, the tenant in possession. Pending that action, Bar- 
ton filed a bill in equity against one John Catlett, the drawer 
of the lot, and Allen, the plaintiff in ejectment, setting up 
an eqaitable title to the lot in himself, and enjoining the 
actKm at law. This bill was dismissed after it had been 
answered separately by Catlett and Allen. A new bill was 
then filed by Matthew J. Holden, under whom Barton held, 
setting the eqaitable title as being in him, and not in Barton, 
ao^inst the same persons. 



422 SUPREME COURT OF GEORGIA, 

_ - -- - ■ - ■ 

Allen vs. Holden. 

On the trial of this latter bill in equity, the oomplainaDt 
offered in evidence the separate answer of Catlett to the first 
bill; filed by Barton, and the Court, against the objection of 
counsel for Allen, allowed the same to be read to the jury as 
evidence against Allen. This decision was erroneous. The 
main issue was between Holden and Allen. Catlett had do 
real interest in the suit, except as to the former owner of the 
lot. Both parties claimed under him, but he, Catlett, neither 
claimed, nor bad, any interest in the land. It is a strict rule 
that the answer of one defendant shall not be read in evi- 
dence against another, not even as to cost, the reason being, 
that there is no issue between the parties, and there has been 
no opportunity of cross-examination. Gresley's Equity Evi- 
dence, 29. Cherutt vs. Jones, 6 Madd. Ch. Bep., 268. 
Jones vs. Tublerville, 2 Ves., 11. 

The title set up by the complainant is, that Catlett sold the 
claim, in 1828 or 1829, to Martin Berry, for $35 00, received 
payment, and made a bond for title; that Martin Berry after- 
wards sold and conveyed the land by bond to Jesse Berry ; 
that bond, with the one from Catlett to Martin, and that 
from Martin to Jesse Berry, have been lost; that in 1836, 
Jesse Berry sold and conveyed the land, by bond, to John 
Dobson, who afterwards sold and conveyed the land, by 
assignment of the bond, to the complainant. This bond is 
exhibited to the bill, from which, it appears that Jesse Berry 
obligates himself therein, in the sum of one thousand dollars, 
to make titles to the obligee, Dobson. 

2. Complainant offered Jesse Berry as a witness, (his tes- 
timony being taken by interrogatories,) to prove the ssAe \>y 
Catlett to Martin Berry, and the one by Martin to himself — 
the execution and loss of the bond for title. The Court 
below admitted the same to go to the jury as evidence against 
the objection of the defendant. The objection to the testi- 
mony should have been sustained, as Jesse Berry was clearly 
interested- in the recovery being had by the partj- calling 
him, and therefore incompetent ; for, if complainajit failed 
to recover, the liability of Jesse Berry on his bond for titb 
would be fixed and certain. 



ATLANTA, MARCH TERM, 1861. 423 

Allen vs. Holden. 

3. The deed from John Catlett to the defendant, Larkin 
A. Allen, for the lot in controversy, dated the 14th of Novem- 
ber, 1843, executed in presence of one Larkin Allen and 
A. E. Bond, was admitted to record on the 1st of Novem- 
ber, 1844, on the affidavit of Larkin Allen, that he saw John 
Catlett assign the within deed for the purposes therein men- 
tioned ; also, he assigned the same as a subscribing witness. 
This deed was improperly admitted to record on this probate, 
on account of the defectiveness of the probate, in this, that 
it contained no statement of a delivery of the deed, or of its 
being signed by the other witness as a subscribing witness. 
SeeRushin vs. Shield and Ball, 11 Ga. Reports, 636. So the 
Court below ruled, but no point was made on this ruling, as 
the deed was again recorded on the 9th of September, 1848, 
on the affidavit of both the subscribing witnesses, containing 
all the requisites of the law. 

On this state of facts, as to the record of the deed, the 

Court below charged the jury, that defendant's deed not 

having been regularly recorded, within twelve months from 

execution, it could not take precedence over complainant's 

title, (if he had one,) under the Registry Act. We think that 

this charge states the law on this subject correctly. It is 

true that the complainant sets up no deed from Catlett, the 

drawer, under which he held or claimed, but he does set up 

claim ander a sale and purchase from Catlett, the payment of 

the purchase money, and a bond for title, in order to take 

precedence over such a title, if there be any such in fact, by 

a subsequent deed, under the Registry Act, such subsequent 

deed must be regularly and properly recorded within twelve 

months. 

Let the judgment be reversed. 



424 SUPREME COURT OF GEORGIA. 

Robertson vs. The State of Georgia. 

Thomas C. Robertson, plaintiff in error, vs. The State 

OF Georgia, defendant in error. 

The fact that R. is present and assists in the butchering of a stolen hog— 
. at the request and by the direction of another, at whose house the 
butchering is done, he not knowing that the hog is stolen— is not 
sufficient to warrant a conviction of R. for simple larceny, especially 
when the owner comes up during the time, sees the hog, and makea 
no objection, nor lays any claim to the animal. 

Indictment for simple larceny, in Lumpkin Superior 
Court. Tried before Judge Rice, at the July Term, 1860. 

Thomas C. Robertson, Adeline Beck, and Sarah G. Beck, 
were jointly indicted in Lumpkin Superior Court, for simple 
larceny, consisting, as the indictment alleged, in wrongfully 
and fraudulently taking and carrying away a certain bog; 
belonging to Rice Arnold, with intent to steal the same. 

The defendants elected to be tried separately, and Thomas 
C. Robertson was put upon his trial, upon which the follow- 
ing evidence was adduced, to-wit : 

EVIDENCE FOR THE fiTIATE. 

Rice Abnold, the prosecutor, testified: That the hog 
described in the indictment was in his pen with his fattening 
hogs, on or about the 26th of November, 1858, in the county 
of Lumpkin, and that it got out of the pen ; that he has not 
seen it since, unless he saw it on that day at Sarah Beck's 
house, afler it was butchered; that on that day, at Sarah 
Beck's house, in said county, he saw a hog, fresh slaughtered 
and cut up, on the table ; that Adeline Beck put the head 
of the hog, some pieces of the meat, and a portion of the 
leaf fat, into a sack, and took it to her house, which was in 
sight ; that whilst she was putting the meat into the sack, 
she stood with her back to the witness, so that he could not 
see the condition of the head ; that' the hog mentioned in 
the indictment was the property of witness, and worth 
85 00. 

One Floyd testified : That he was working for Rice 



ATLANTA, MARCH TERM, 1861. 425 

Robertson vs. The State of Georgia. 

Arnold, and early in the morning of the 26th of November, 
1858, he went from Arnold's to Sarah Beck's, some mile 
distant, and saw said Thomas C. Robertson, Sarah Beck, and 
Adeline Beck, cleaning the hog that got out of Rice Arnold's 
pen, which seemed to have just been killed; that the ears 
were cat off from the head of the hog, and seemed to be 
freshly done; that when he got there, they had just com- 
menced to take the hair from the hog, and had only taken it 
from a place on the shoulder, about as large as the witness' 
two hands. 
Here the State closed its testimony. 

EVIDENCE FOR DEFENDANT. 

William D. Beck testified : That he was a nephew of 
the defendant ; that Sarah Beck is the mother of an illegiti- 
naate child, eight or ten years old, which Arnold, the prose- 
cutor, acknowledges and recognizes as his, and has aided in 
the support of Sarah Beck and the child, by furnishing her 
with provisions; that in April, 1858, Sarah Beck sent wit- 
ness to Arnold's for some corn, and Arnold said he would 
let her have the corn, but that he must pretend to buy it, in 
order to prevent suspicions on the part of Arnold's wife ; 
that the witne3S refused to do so ; that Arnold then said he 
would take a large turn of corn to the mill, and leavrfa por- 
tion of it for Sarah ; that on the same day the witness and 
Arnold w6nt by Sarah Beck's house, and she told Arnold 
that she had one of his shoats in the pen, to which Arnold 
replied, that she had nothing to feed it with, to turn it out, 
and he would give her a good hog in the fall. 
Sarah G. Beck testified : That she is the mother of an 

» 

illegitimate child, now about ten years old, of which Rice 
Arnold is the father, and so recognizes himself, which recog- 
nition was known to Thomas C. Robertson, Adeline Beck, 
and Jfartin Chambers, before the hog was taken; that 
AmoM Jhad frequently sent her things from the store, and 
furaished her with meat and meal, and had left corn at the 
niiJI fer her^ and had given her a hog, the fall before ; that 



426 SUPREME COURT OF GEORGIA. 

Robertson vs. The State of Georgia. 

in 1857 and 1858^ Arnold frequently furnished her with 
corn and meal, by carrying a large turn to Mr. Castleberry^s 
mill, kept by Mr. McClane, and leaving a portion of it for 
her; that he frequently furnish^ her with meal in that way, 
in order to prevent his wife from knowing that he was 
furnishing her with meal ; that he furnished her with nearly 
all the meal she used in 1858, in that way ; that Arnold told 
the witness to take a good hog of his out of the woods and 
kill it, but to be careful not to let his wife know it; that she 
took this hog and put it inside of her enclasure, and asked 
Robertson and Adeline Beck, her brother-in-law and sister, to 
help her to butcher it, which they did ; that she told Robert- 
son to cut off the hog's ears to prevent it being known that 
it was Arnold's hog, and his wife thus find it out; that 
Robertson did cut off the ears, according to her direction; 
the witness did the same thing with the hog Arnold gave 
her the fall before ; that Robertson got none of the meat, 
and what he did was an act of kindness to witness. 

Adeline Beck testified to substantially the same facts as 
Sarah G. Beck. 

Martin Chambebs testified: That he was present and 
heard the conversation between Rice Arnold and William 
D. Beck about the corn, as testified to by William D. 
Beck ; that in 1857, one of Rice Arnold's hogs got with 
old nfcn Beck's stock, and some of the old man's family 
claimed it, and there was some difiiculty about the hog 
which was not marked ; Arnold said the hog was his, bat 
that as it was not marked, he would have no contention 
about it, but that if they ever took any of his marked hogs, 
he would prosecute them ; the hog the contention oocurred 
about, was a shoat, weighing some sixty pounds; that wit- 
ness aided in butchering the hog named in this prosecution, 
and the ears were cut off after the hog was killed and 
cleaned, and as they cut it up. 

James M^^Clane testified : That he kept the mill of Mr. 
Castleberry for a year or more previous to November 26th, 
1858, and that Arnold left a half bushel of corn at the mill 
for Sarah Beck, telling witness to give it to her, when she 



ATLANTA, MARCH TERM, 1861. 527 

Robertson vs. The State of Geor^a. 

came afler it ; that he ground the com and Sarah Beck came 
and took it away ; that this is all the corn Arnold ever left 
at the mill for Sarah Beck, whilst witness kept the mill. 

Upon this this testimony the jury found Robertson guilty. 

Counsel for Robertson then moved for a new trial on the 
ground: 

That the jury found contrary to evidence, and greatly 

against the weight of evidence. 
The Court refused the new trials which is the error alleged. 

Mabtix & Irwin and Lester, for plaintiff in error. 

No appearance for defendant in error. 

By the Court, — Lyon, J., delivering the opinion. 

We think the Court below ought to have sustained the 
motion for a new trial in the case, on the ground that the 
verdict was against the evidence. If the hog was stolen, 
(of which there is some doubt,) it is very clear that the 
defendant, Robertson, had no hand in it. The only connec- 
tion he had with the matter was to assist his relative, Sarah 
G. Beck, in its butchering, and at her request. What he did 
was by her direction, and in the day time, with no attempt 
at any concealment, unless it was in cutting off the ears of 
the hog — and this was done at the request of Sarah Beck, 
and on such an apparently good reason, at the time, as was 
sufficient to have disarmed the suspicions of the most scrupu- 
lously honest. Besides, Rice Arnold, the prosecutor and 
owner^ came up at the time, witnessed the cleaning and 
batchering of the hog, without objection or remark. How 
could Robertson believe, under the circumstances, that the 
hog was stolen ? 
Let the judgment be reversed. 



428 SUPREME COURT OF GEORGIA. 

Compton vs. Cassada. 

Pleasant M. Compton, plaintiff in error, vs. Jambs Cas- 
sada, defendant in error. 

1. The mere verbal declarations of C, in whom vests the legal title for 
a lot of land, that I., with another, are interested with him in that &iid 
other lots— that this lot, and others, were bought by him on speculation, 
and that I. and another had an interest with him in the lots as partners, 
are not sufficient to pass the title, legal or equitable, to one of the lots, 
out of C, and vest it in L, or his assigns. 

2. If one sell and convey land, in his individual name, such sale and 
^J^ conveyance will not pass the title of one for whom he may be autho^ 

ized to sell such land. 

3. The recollection of one witness that he had seen a letter from C. to 
I., authorizing I. to sell a lot of land for him at a particular price, 
which letter has been lost, is too imperfect and uncertain to jastlfj 
and protect a sale and conveyance by I, as the agent of C. 

4. A, continuance will not be allowed on account of the absence of 
papers, etc., caused by change of counsel, or the neglect of the client 
to attend to his case. 

In equity, in Fannin Superior Court. Tried befot^ Judge 
RiOE, at the October Term, 1860. 

This was a bill in equity, filed by James M. Cassada, against 
Pleasant M. Compton, alleging that said Compton, Russell 
Candon, and John Jones, were partners in granting reverted 
lands, located in the Cherokee purchase of Georgia ; that 
complainant can not set forth the precise terms of such part- 
nership ; that amongst divers lots of land, granted under 
said partnership agreement, was lot of land No. 123, in the 
8th district of originally Cherokee, then Gilmer, and now 
Fannin county ; that according to the partnership agreement, 
the grants to all the land granted as aforesaid, were issued in 
the name of Compton alone; that a distribution or division 
of the lands granted aforesaid, was had between the said 
Compton, Cannon and Jones, in which division the lot of 
land aforesaid fell to Jones, and that Compton, although 
holding the legal title, held it as the trustee of Jones, and 
wrote to Jones that, at any time he could make sale of said 
lot ; that he, Compton, would execute a deed of conveyance 
to Jones, or to any one else that he might direct; that under 



ATLANTA, MARCH TERM, 1861. 429 

Compton vs. Gassada. 

hese circumstances, Jones sold the land to John Cassada, and 
xecuted a bond to make titles to the same^ receiving from 
Cassada the sum of fifty dollars, the purchase, price agreed 
m, and also showing to said John Cassada the letter of 
I^omplon, directing Jones to sell the land, and promising to 
nake a deed either to Jones or to any one that he might 
iirect ; that afterwards John Cassada sold the land to com- 
plainant, receiving payment therefor, and assigning to com- 
plainant Jones's bond; that afterward, Jones exhibite<1 the 
said letter of Compton to complainant, and made complain- 
ant a deed, and took up his bond for titles ; that under this 
purchase, the complainant, in good faith, entered upon the 
land, cleared and enclosed the same, placed buildings and 
other valuable improvements thereon, increasing the valpe 
of the land to the sum of $500 00 ; that Compton was aware 
of the purchase of the land, and the circumstances under which 
l\e purchased it, and the improvements placed upon it, and 
interposed no objection thereto; that Cannon has received 
his full share of the lands granted under the partnership 
agreement, and has no further interest in the land, and that 
Jones has removed to California, and is insolvent, and unable 
to respond to complainant on the warranty in his deed, and 
if he was, the damages in an action on the warranty would 
not compensate complainant for the improvements placed upon 
the land ; Compton has been applied to for a deed, and 
refused to make it, but on the contrary, has commenced an 
action of ejectment against complainant for the land. 

The bill prays a discovery; and that Compton may be 
compelled to make complainant a deed ; and that the action 
of ejectment be perpetually enjoined. 

Compton filed his answer to the bill, in which he states: 
That between himself and Cannon thefe was a partnership 
like that alleged in the bill, under which lands were granted, 
and among them the lot in question; that the grant fees 
were paid by defendant, and Cannon afterward released his 
interest to defendant, whereby he was the sole and entire 
owner of the land ; that Jones never was connected in any 
manner with, or had any interest in, the lands granted, 



430 SUPREME COURT OF GEORGIA. 

Compton vs, Gassada. 

either as partner or otherwise ; that the facts in relation to 
the letter written by defendant are : that Jones knowing that 
defendant was the owner of the land, opened a negotiation 
with defendant for the purchase thereof, and defendant 
replied by writing to him that his price for the land was 
$160 00, and that he was willing to convey it for that sum, 
to Jones, or any one else he might Qame; that he admits 
the sale by Jones to John Cassada, and by John Cassada to 
complainant, as well as the pendency of the action of gect- 
ment, but denies that the improvements put upon the land 
were with the authority of defendant, or induced by any act 
or word of his, but put there foolishly by complainant, under 
a purchase from one who had no interest in the land. 

When the case was called for trial a motion was made to 
continue the same, by the defendant. 

The motion was based upon statements made. by William 
Martin, one of the defendant's counsel, that the defendant 
resided in Milledgeville, at a great distance from the Court, 
and had confided the management of the case to his counsel; 
that the counsel originally employed by defendant bad 
ceased to attend the Court, and that he, Martin, was but 
recently employed, to-wit: awhile before the last term of 
the Court ; that he was informed and believed, that Abda 
Johnson, former counsel of defendant, had in his possession 
certain letters, written by John Jones to defendant, before 
defendant wrote to him, by which he expected to show that 
Jones did not claim the land, but recognized defendant as 
the owner ; that the defendant's counsel had been changed 
three or four times, and that he, Martin, had not had time 
or opportunity to obtain the letters. 

This motion to continue was overruled by the presiding 
Judge. • 

On the trial, complainant, after accounting for the non- 
production of the originals, proved the contents of two 
letters, written by defendant to John Jones, in the year 1849 
or 1850, authorizing him to sell certain lands in Fannin 
county, amongst which was the lot in dispute ; that in both 
letters, a price was mentioned, which the witness did not 



ATLANTA, MARCH TERM, 1861. 431 

Compton vs, GasBada. 

recollect ; that CaDnon and Jones both said, that they and 
defendant were in partnership in granting lands, the terms 
of which were : that Cannon and Jones were to furnish num- 
bers, and defendant was to take out the grants, and that 
CaDnon and Jones were to refund their part of the grant 
fees, and the land was' to be equally divided between the 
three; that Jones did furnish numbers, the land in dispute 
being one, and that Jones had frequently dealt in lands as 
partner of defendant 

The complainant also proved, by three witnesses, that 
defendant said that he and Cannon and Jones had granted 
lands in partnership, Jones and Cannon*furnishing numbers, 
and he taking out the grants, and that the lands were to be 
divided after the grant fees were returned ; to two of the 
witnesses, Compton said, that he had authorized Jones to 
sell the lot m dispute, and that he could not sell it until he 
beard from Jones. 

It was also proven by complainant, that he had gone into 
po^ession of the land, and made valuable improvements. 

The grant to Compton, and the deed from Jones to 
Cassada, were also in evidence. 

Pending the trial, complainant's counsel tendered to 
defendant's counsel $9 '50, with interest, as Jones' part of 
the grant fee, which, after remaining a short time on the 
table, and not being taken up by defendant's counsel, was 
taken back by complainant's counsel. 

When the testimony closed, counsel for defendant requested 
the Court to charge the jury : 

"That if defendant authorized Jones to sell the land at a 
specific price, and the money to be paid to Compton, Jones 
ooald not bind Compton by selling at a less price." 

The Court refused so to charge. • 

The jury found for the complainant, and counsel for 
defoidant moved for a new trial, on the grounds : 

hL Because the Court erred in refusing the continuance 
moved for by defendant's counsel. 

Sd. Because the Court erred in refusing the charge re- 
quested by defendant's counsel. 



432 SUPREME COURT OF GEORGIA. 



Compton vs, Cassada. 



3d. Because the jury found greatly against the weight of 
evidencer 

The new trial was refused, and that refusal is the error 
assigned in this case. 

Fain & Martin, (by Eazzrd,) for plaintiff in error. 

Brown, (by Lester,) for defendant in error. - 

By the Court. — Lyon, J., delivering the opinion. 

Pleasant M. Compton commenced an action for the re- 
covery of lot of land No. 123, in the 8th district, second 
section of originally Cherokee, now Fannin county, agaiost 
James M. Cassada, the tenant in possession, pending which, 
Cassada filed a bill in equity to enjoin said action for relief 
against the same, in which he alleged that Compton, one 
Russell Cannon and John Jones, granted this lot, with 
others, in partnership, the grant to which was taken out in 
the name of Compton. That subsequently, a division, by 
agreement, was had between the parners, and this lot, with 
another, fell to the share of John Jones, and Compton con- 
tinued to hold the title thereto in his name, as naked trustee 
for the use of Jones, but agreed to make titles for said lot, to 
whomsoever he, Jones, might sell the same, and that Comp- 
ton had written him (Jones) a letter, stating his willingness to 
make a title to him, or his assigns, as said lot belonged to 
him, Jones; that if Jones desired to sell said land, to do so 
at any time, and that he, Compton, would make a deed for 
the same to Jones, or his vendee. That the letter has been 
lost. The bill further alleges, that Jones, on the faith of 
this letter, which he exhibited, sold the lot to John Cassada 
for fifly dollars, and ^ve his bond for titles, which bond 
John Cassada transferred to James M. Cassada, the complain- 
ant, and Jones subsequently made his deed, and took up that 
bond. The bill asks for discovery from Compton, a pa*- 
petual injunction as to the action of ejectment, and that 
Compton be decreed to execute his deed to the complaiuants 
for the lot in controversy. 



ATLANTA, MARCH TERM, 1861. 433 

Compton V9, Cassada. 

Compton, by his answer, denied that the lot, or any other, 
was granted to him as a partner of Jones and Cannon, but 
that it was granted to him on an understanding with Cannon, 
that he was to have an interest, but that Jones was no party 
or privy to such understanding or agreement; that his name 
was unknown to him in that or any other oonnection until 
long aflerwards ; that Cannon had remitted to him all his 
interest or claim in this and all other lots ; and that he, the 
(»mplainant, became the exclusive owner of the equitable, as 
he was of the legal, title; that he never wrote to Jones any 
«uch letter as that stated in the bill; on the contrary, Jones 
had written him, proposing to purchase the land, and that 
he replied that he would convey the land on the payment to 
him of the sum of $160 00; that he has written no other, 
or to any other purport. 

The parties, being thus at issue, went to trial on the equity 
cause, at the October Term, 1860, of Carroll Superior Court. 
Complainant proved by E. W, Chastain that he heard s^^omp- 
ton say that Jones and Cannon had furnished him with the 
number of this lot and others ; that they were all interested, 
and he had authorized Jones to sell this lot, and would not 
sell it until he heard from Jones ; by B. F. Chastain that he 
beard Compton say that Cannon and Jones furnished him 
with this number and others ; that they were to have the 
lots on speculation, and that he had authorized Jones to sell 
thi^ and the Neal lot ; that defendant had gone into the pos- 
^fission, and made improvements on the lot. John B. Chas- 
tain proved that Compton told him that Jones and Cannon 
were to have an interest in the lot ; that Jones had no right 
to sdl the lot, he had paid nothing ; Compton was to furnish 
money and grant the land, Jones and Caiyion were to furnish 
naniberB,and refund the money. Complainant proved furth- 
*"'r by Samuel Jones, the father of John Jones, that he was 
acquMited with the handwriting of Compton, and had seen 
two kiteiB from Oompton to his son, John Jones, authorizing 
Johji jFonea to sell the lot in controversy and another, at 
"^pecJfle prices, which he does not recollect ; the letter said 
nothing about a partnership in the lands that he recollects, 
Tou xxxn— 28. 



434 SUPREME COURT OF GEORGIA. 

Gompton vs. Cassada. 

though his son had told hitn that such a partnership did 
exist. The letters were lost while in his possession^ or that 
of his wife, for safe keeping. 

The complainant also put in evidence a quit-claim deed 
from John Jones to himself for this lot of laud, dated 20th 
October, 1850. 

1. On this evidence the jury rendered a decree for the com- 
plaiuant, and Compton moved for a new trial, on the ground, 
amongst others, that the finding was against the evidence and 
the weight of the evidence. The Court overruled the motion, 
and that is the only question brought here for review. Was 
the verdict against the evidence ? We are clear that it was. 
The legal title to the lot was, as shown by the plat and grant 
dated in 1846, which was before the jury as evidence, in the 
defendant, Pleasant M. Compton, and nothing was shown to 
legally take that title, legal or equitable, out of him. There 
18 no evidence to show title in Jones, or an interest even. It 
is true that the Chastains testify that Compton ^id that 
Jones had an interest in the lot, but titles to land can not be 
created by mere verbal declarations of this character without 
overturning the statute of frauds. 

2. If it be said that Jones had authority to sell, the reply 
is, that he did not sell the lot as that of Compton's, nor so 
convey; nor did he sell and convey the lot as Compton's 
agent, but he sold and conveyed the land as his own. A sale 
so made by one, although he might have power to sell for 
another, passes nothing but the title of himself, and not that 
of his principal. Had he attempted to convey as Compton's 
agent, his authority must have been shown, or better proven 
than it was, and that he had pursued his instructions. 

3. The letters of pompton to Jones, as testified to by Samuel 
Jones, if such letters ever existed in fact, amount only to a 
limited authority to sell, and the witness's recollection of the 
contents was too imperfect, and the evidence itself too onoer- 
tain, to form a basis for a title to land, so as to authorize the 
Court to act upon it, although the instructions might hare 
been observed. 

\ye think that the Court should have sustained the motiou 



ATLANTA, MARCH TERM, 1861. 435 

— * ' — I- III _| I ■IMIIIHHI 

Eendrix vs. Kellogg. 

for a new trial, on the ground that the verdict was against 
the evidence* The complainant was not entitled to a decree 
on the case made. 

We agree with the Court in refusing to charge as requested, 
there being no evidence to authorize it. 

4. The motion for a continuance was properly refused. A 
party must not be delayed in atrial by the change of counsel 
or the n^lect of the other party to attend to his cause. 

Let the judgment be reversed. 



William Hendrix, plaintiff in error, vs. Henry C. Kel- 
liOGO, administrator, etc., defendant in error. 

A petition for writ of certiorari is a suit in the sense of the 28d section of 
the Statute of Limitations of 6th March, 1856, and in case thejsame be 
dismissed, discontinued, or non-suited, the plaintiff may renew his ap- 
plication within six months from such dismissal, discontinuance, or 
non-suit. 

Certiarariy from Dawson Superior Court. Decided by 
Judge Bice, at the August Term, 1860. 

The question presented by the record in this case arises out 
of the following state of facts, to-wit : 

On the 21st of March, 1857, William Hendrix obtained a 
judgment, in the Justice's Court of the 1022d district, G. M., 
of Dawson county, against A. M. Jackson, maker, and 
Andrew E. Bond, endorser. From this judgment a Ji. fa. 
issued and was duly returned nulla bona, as to Jackson. On 
the 28th of May, 1857, the Ji, fa. was levied on a horse colt 
as the property of Bond. Bond filed an affidavit of ille- 
gality to the Ji. fa. on the grounds : ' 

1st. That he was indorser for Jackson. 

2d. Because the plaintiff had promised to take out a ca. sa.^ 
against Jackson, and had failed to do so. 

It appeared upon the trial, that Hendrix had promised to 
ca. sa. Jackson, and had failed to do so, and that after such 



436 SUPREME COURT OF GEORGIA 

Kendriz vs. Kellogg. 

fitilurC; Bond had solicited indulgence on the judgment, and 
offered to pay ten per cent, for such indulgence. The pre- 
siding Justices called on one James T. Barrett to decide the 
case for them, and Barrett told them to sustain the illegality, 
on the ground that the pli^intiff had promised to take out aca. 
sa. for Jackson, and had not done so, and the presiding Jus- 
tices did sustain the illegality on that ground. 

The plaintiff filed his petition for certiorari excepting to 
the judgment of said Justices on the grounds : 

1st. that there was no consideration for the promise, made 
by Hendrix, to press a ca. sa. against Jackson, and that the 
same did not discharge Bond, the indorser. 

2d. Because Bond treated the promise as a nullity, by 
asking indulgence and offering to pay ten per cerd. for the 
same. 

3d. Because the case was decided by James T. Barrett, a 
mere citizen, clothed with no judicial authority whatever. 

A writ of certiorari issued on the 14th of January, 1858. 

The certiorari was pending in Court until the six months 
allowed by law for taking the same had expired, and at the 
August Term, 1858, the ceiiiorari was dismissed for a defect 
in the affidavit, and because it was not made conformably to 
the Act of 22d December, 1857. 

The plaintiff filed another certiorari on the 6th July, 
1859, within six months from the dismissal of the former. 

When this second certiorari came up for a hearing, the 
defendant's counsel moved to dismiss the same on the ground 
that it was not sued out within six months after the decision 
was complained of, and that a second certiorari could not be 
brought afler the first was dismissed, and that 33d section of 
the Act of Limitations of the 6th March, 1856, did not 
apply to writs of certioraH. 

The presiding Judge sustained the motion, and that deci- 
sion is the error alleged. 

Bell, (by Lester,) for plaintiff in error. 

S. C. Johnson, (by Sims,) contra. 



ATLANTA, MARCH TERM, 1861. 437 

Hendrix vs. Kellogg. 

By the Court — Lyon, J., delivering the opinion. 

The plaintiff had filed his petition, for a writ of certiorari 
to the judgment of a Justice's Court, within six months 
from the rendering of that judgment, which was dismissed on 
motion of counsel for the defendant, for some informality 
in the suing ont the application.. While the application 
was pending in the Superior Court, the six months in which 
the writ was limited to be brought or allowed by statute, 
expired. And this second petition or application was brought 
within six months from the time the former was dismissed. 
The Court dismissed this second application on the ground 
that it was barred by the Statute of Limitations, to which the 
plaintiff excepted, and the case comes before us for the 
review of that judgment. 

The only question made or argued is, whether the petition 
or application for certiorari is a suit in the sense of that 
term, as used in 23d section of the Statute of Limitations of 
6th March, 1856, pam. Acts, p. 237. "That when any 
suits shall be commenced within the time limited by this 
Act, and the same shall be discontinued, dismissed, or the 
plaintiff non-suited or judgment be arrested, and during 
the pendency of such suit the time, within which such 
suit is to be brought by the provisions of this act, shall 
expire. It shall be lawful to renew said suit at any time 
within six months after such termination of the case, but this* 
right shall only extend to one renewal." If certioraris are 
suits, then the plaintiff was entitled to renew his application 
and the judgment of the Court below, dismissing it, erro- 
neous. We hold that it was. A suit is defined " to be an 
action or process for the recovery of a right or claim ; a 
legal application to a Court for justice ; the prose<;ution of 
a right before any tribunal.'^ And indeed what else is a cer- 
tiorearif but a process, an action, or a prosecution by petition 
to the Court for the recovery of a right, without which the 
right is gone? It is a suit in the literal sense of the term, 
and to that we are disposed to confine ourselves in the con- 
struction of this statute, as all Courts are bound, or ought to 



438 SUPREME COURT OF GEORGIA. 

< 

Shands k Co., vs, Howell k Co. 

be, in the construction of Statute of Limitations — ^a strict, 
literal construction — no more and no less than the statate 
by its letter declares. There is no hardship in this rule, and 
if there was, we could not help it. If parties desire a 
speedy hearing, and not a mere avoidance of a legal demand, 
they should not press a captious and unmeaning objection to 
the dismissal of the action when it is once before the Court 
Let the judgment be reversed. 



A. Shands & Co., plaintiffs in er\pT, vs. A. Howell & Co., 

defendants in error. 

1. This case was founded on a jadgment rendered in the State of Cali- 
fornia. Two statutes of that State were introduced, one approved 
10th April, 1860, the other approved 22d April, 1860 : Held, that the 
case was fNerned by the latter Act, and that the former had no appli- 
cation to the case. 

Debt on foreign judgment, in Lumpkin Superior Coart, 
and decision by Judge Georqe D. Rice, at July Term, 1860. 

This case came before the Court upon the following state 
of facts: 

On the 8th of March, 1852, A. Shands & Co. filed a com- 
plaint against A. Howell & Co., before S. L. Crane, a justice 
of the peace, in Greenwood township, Eldorado county, and 
State of California, for the recovery of a mining claim, and 
damages. The defendants were served with process, and on 
the 13th of March, 1852, both. parties appeared with their 
counsel. Upon motion of counsel for defendants, the bear- 
ing of the case was postponed until the 22d of March, 1852. 
At the call of the defendants, a jury was summoned and 
impanneled, who, after hearing the case, returned a ''verdict 
against the defendants, in damages, to the amount of $375 00, 
and that plaintiff's have restitution of their claim.'' 

Upon this verdict, the Justice of the Peace rendered the 
following judgment, to- wit: 



ATLANTA, MARCH TERM, 1861. 439 

Shanda k Co., vs. Howell & Co. 

^^It is considered, by the Justice, the damages to be laid 
at $500 00, and defendants jBned $100 00, and the plaintiffs 
have execution for their debt and cost." 

The debt and costs amounted to $851 50. 

The defendants entered an appeal to the County Court of 
Eldorado county, and on the 3d of May, 1852, the judgment 
of the Justice of the Peace was confirmed by the County 
Court 

The mining claim and fixtures were sold by the constable, 
under an execution issued upon the judgment, and brought 
§380 00, and on the 4th of October, 1852, a transcript of 
the record and docket was made out and given to the plain- 
tiffs for the balance due, to-wit : 0603 50. 

On the 7th of October, 1856, this California judgment 
was sued on in the Superior Court of Lumpkin county. 

Upon the trial of the case the plaintiffs introduced a duly 
exemplified copy of the record of the judgment, and closed. 

The defendant then introduced an authenticated copy of a 
statute of the State of California, of which the IbUowing is 
a copy, to-wit: 

An Ad to regulate proceedings in Courts of Justices of the 

Peax^, in eivU oases. 

Section 1. [Omitted here.] 

Section 2. The jurisdiction of Justices of the Peace, in 
civil cases, shall, unless otherwise directed by law, be limited 
to the township wherein they may have been elected, and 
every Justice of the Peace is hereby authorized to hold a 
Court for the trial of all actions enumerated in the next sec- 
tion, and to hear, try, and determine the same according to 
law. 

SjBcnoN 3. Every Justice of the Peace shall have juris- 
diction over, and cognizance of, the following actions and 
proceedings, subject to the provisions in the next following 
secdon: 1. Actions for the recovery of money upon any 
contract, express or implied, when the amount claimed is 
$200 00, or under. 2d. Actions for damages, where the 
amoosit daimed is |200 00, or under. 3d. Actions for fore- 



440 SUPREME COURT OF GEORGIA. 

Shands & Co., vs, Howell & Co. 

closure of any mortgage on personal property, or the enforce- 
ment of any lien, when the debt secured is $200 00, or under. 
4th. Actions for the recovery of specific property when the 
value of the property claimed does not exceed $200 00. 

Section 4. [Omitted here.] 

This Act was approved the 10th of April, 1850. 

Plaintiff then introduced a properly authenticated copy of 
a statute of the State of California, of which the following 
is a copy : 

An Act concerning forcible entries and unlawful detainers. 

Section 1. No person or persons shall hereafter make 
any entry into lands, tenements, or other possessions, but in 
cases where entry is given by law, and in such cases, not 
with strong hand, nor with multitudes of people, but only 
in a peaceable manner, and if any person from henceforth do 
to the contrary, and thereof be duly convicted, he shall be 
punished by fine. 

Section 2. Any Justice of the Peace shall have authority 
to inquire, as hereinafter directed, as well against those who 
make unlawful or forcible entry into lands, tenements, or 
other possessions, and detain the same, as against those who, 
having lawful and peaceable entry into lands, tenements, or 
other possessions, unlawfully detain the same ; and if it be 
found, upon such inquiry, that an unlawful or forcible entry 
hath been made, and that the said lands, tenements, or other 
possessions, after a lawful entry, are held unlawfully, then 
such Justice shall cause the party complaining to have resti- 
tution thereof. 

Section 3. When complaint shall be made, in writing, to 
any Justice of the Peace, of any such unlawful or forcible 
entry, or unlawful detainer, said Justice shall issue a summons, 
directed to the sheriff or constable of the county, command- 
ing him to summon the person or persons complained of, to 
appear before the said Justice on a day in such summons 
named, which shall not be less than ten days from the day 
of issuing the summons, and at the place named therdo« 



ATLANTA, MARCH TERM 1861. 441 

Shands & Co.| V8. Howell & Co. 

Section 4. [Provides as to how and when the summons 
shall be served and returned.] 

Section 5, [Provides that the Justice shall hear and 
determine the case unless a jury be demanded.] 
Section 6. [Provides for serving absentees.] 
Section 7. [Provides for adjournments and continuances.] 
Section 8. [Provides for taking depositions.] 
Section 9. [Provides as to what proofs are necessary.] 
Section 10, If, upon the trial of any complaint under this 
Act, the Justice or jury shall find the defendant or defend- 
aote, or either of them, guilty of the allegation in the com- 
plaint, said Justice shall thereupon enter judgment for the 
complainant to have restitution of the premises, and shall 
impose such fine not exceeding one hundred dollars, con- 
sidering all the circumstances, as he may deem just; and 
shall tax the cost for complainant, and may issue execution 
therefor, and said Justice shall also award and issue a writ of 
restitution. ******* * 

Section 11. [Inapplicable.] 

Section 12. In all cases of a verdict by the Justice or 
jury, for the complainant, the damages shall be assessed, as 
well for waste and injury committed upon the premises, as 
for rent and profits during such detainer, and the verdict 
shall also find the monthly value of the rents and profits of 
said premises, and the complainant shall be entitled to 
recover treble damages against whom the judgment has been 
rendered, which damages shall be assessed by the Justice or 
jury, and when su assessed, shall be trebled by said Justice, 
and entered as a judgment in the causes, upon which execu- 
tion may issue. 

Sbction 13 and 14 and 15 are inapplicable. 

Section 16. [Allows an appeal.] 

Hie remainder of the Act is omitted as unnecessary to 
iilufllrate the question decided. 

Tkis Act was approved the 22d of April, 1850. 

Upon Ihis proof the presiding Judge decided that the Act 
of 22d of April was not applicable to the case, but that the 



442 SUPREME COURT OF GEORGIA. 

Shands & Co., vs. Howell & Co. 

Act of the 10th of April was applicable to the case, and that 
, the Justice who rendered the judgment in California did not 
have jurisdiction to render the same, and that therefore the 
plaintiffs could not recovct*, and having so instructed the 
jury, they returned a verdict for defendants. 

This judgment is the error complained of, and a reversal 
of the same is sought by plaintiff in error. 

George N. Lester and Weir Boyd, for plaintiff in 
error. 

Martin, (represented by Ezzard,) contra. 

By the Court. — Lumkin, J., delivering the opinion. 

This action is founded on an exemplification from Califor- 
nia, and the question is, does it come under the Act of the 
10th of April, 1850, or the 22d of April, 1850. 

I remark, we do not feel at liberty to sit as an appellate 
Court in this case. It was tried in the Magistrat-e's Court of 
Greenwood township, and on appeal, taken to the County 
Court of Eldorado. The action was defended on its merits, 
and no plea to the jurisdiction of the Court was made, and 
we do not feel at liberty to go behind the Clerk's certificate, 
to enquire into the constitutional competency of the Court 
which rendered this judgment. But if we did, it is appa- 
rent that the case cannot come under the Act of the 10th of 
April, 1850, for that Act is limited expressly to cases 
sounding in damages in $200 00, a less sum, and for this 
and other reasons, we think it quite manifest that it does not 
come under this Act. 

Whereas, we find that the provisions of the Act of 22d of 
April, 1850, have been strictly complied with, and it is 
covered completely by the provisions of the latter Act, and 
the Judge should so have instructed the jury. 

The truth is, the Act of the 10th of April, 1850, confers 
ordinary jurisdiction to the Magistrate's Court. But the 
Act of the 22d of April, 1850, is analagous in its provisions 
to our forcible entry and detainer Act, giving damages for a 



ATLANTA, MARCH TERM, 1861. 443 

Coanell and Loqg V8. Sharpe. 



gold claim that is improperly withheld. Iti other words, it 
confers thi^s extra jurisdiction upon this Court in addition to 
its ordinary functions. 



Geo. T. Connell and B. M. Long, plaintiffs in error, va, 
Hiram Sharpe, defendant in error. 

1. Upon a motion for a continoancet it appeared that the party was in 
bed sick, and therefore nnable to be present at the trial. His attor- 
ney also stated that he could not go to trial safely without the presence 
and aid of his client : MM, that the continuance should have been 
allowed. 

Certiorari, in Carroll Superior Court, decided by Judge 
Hammond, at the October Term, 1860. 

Hiram Sharpe brought twenty-two suits in the Justice's 
Court of the 714th district, G. M., of Carroll county, against 
George T. Council, principal, and Benjamin M. Long, secu- 
rity, on twenty-two due bills, twenty-one of them for $50 00 
each, and one for $41 11. 

The defendant pleaded the general issue and usury. 

At the May Term of said Justice's Court, the cases were 
called for trial, and it was agreed by the counsel of the par- 
ties that the trial and judgment in oue of the cases should 
control and govern the remainder of the cases; 

Counsel for the defendant moved to amend his pleas in 
the cases, by adding thereto, that the due bills sued on were 
ohtuned by fraud, and also moved to continue all of said 
eases, and supported the motion by the following showing, 
to- wit: 

6£0RGE W. Austin, the attorney of the defendant, stated 
in his place that his client was providentially hindered from 
attending Court, and that he could not go safely to trial with- 
out him; also, that Henry S. Chance was a material witness 
for defendant, and was absent, and that he expected to prove 
by C9iance that the allegations in the amended plea were 



444 SUPREME COTJRT OF GEORGIA. 

Conn ell and Long vs. Sharpe. 

true ; that the knowledge of Chancers testimoDy came to him 
too late to obtain it for the term, and that he expected to obtain 
the testimony by the next term of the Court thereafter. la 
support of the motion, William Johnson testified that Dr.Con- 
nell, the defendant, had been attending his wife as a physician, 
and that witness went after him that morning to visit his 
sick wife; that Connell was in bed sick, and told witness to 
get another physician ; that whilst he did not positively 
know Connell to be sick, yet he seemed to be so ; said he was 
sick with an old chronic disease, and that witness believed he 
was sick; that witness had known Dr. Connell for years, and 
knew that he had been afflicted with gravel for many years, 
and that he appeared to have fever that morning. 

The presiding Justices decided the showing insufficient, 
and refused the continuance, the plaintiffs proposing to admit 
that there was 8 per cent, usury in the due bills. 

The cases were then tried, and judgment rendered against 
the defendant for the amount of the due bills, less eight per 
cent, of usury, which was embodied in them. 

The defendant applied for and obtained a cer^u>rar} of said 
cases, alleging that the refusal of the Court to continue the 
cases upon the showing made, was error. 

Upon hearing the certiorariy Judge Hammond overruled 
the same, and affirmed the judgment of the Justice's Court. 
Error is assigned upon this decision, and its reversal sought. 

EiCHARDS & Austin and A. H. Black, for plaintiff in 
error. 

Thomason, Chandleb, contra. 

By the Court. — Lumpkin, J., delivering the opinion. 

Whatever opinion may be entertained of this case outside 
of the record, upon the showing made, the defendant was 
entitled to a continuance, not on account of the absence of 
the witness. Chance, for his testimony went to establish an 
immaterial issue, and one which could not have availed the 
defendant, but on account of the providential absence of the 



ATLANTA, MARCH TERM, 1861. 445 

Eeeter m. Smith. 

I II ^ _ !■ ' _ — _ . , 

defendant himself, and that he could not go safely to trial 
withoat him. Trae, the plaintifib' counsel dispensed with 
the preliminary showing by defendant, to enable him to 
examine the plaintiffs as to the usury in the contract. But 
as the attorney was unable to conduct the examination, as he 
might have done by the aid of his client, who might even 
have suggested witnesses who could have contradicted the 
plaintiffs, we do not think a trial could be forced in this way. 
Let the judgment be reversed. 



RiCHAED BoE, casual ejector, and Elbert Keeter, tenant, 
ete., plaintiffs in error, vs, John Doe, ex dem., Joseph 
Smtih, defendant in error. 

]. To authorize the plaintifiT in ejectment to nse the name of a third per- 
son as lessor, he must show that he has a bona fide subsisting claim to 
the premiseSi and that there is a connection between his title and that 
of the party upon whose demise he seeks to recover ; or that he has 
authority of that person in whom the paramount title is vested , to 
institute the suit in his name. 

l^ectment, in Cherokee Superior Court. Tried before 
Judge George D. Rice, at the March Term, 1860. 

This was an action brought in the name of John Doe, on 
the demise of Joseph Smith, against Bichard Boe, casual 
ejector, and Elbert Keeter, tenant in possession, to recover 
lot of land No. 141, in the 14th district of the 2d section of 
Cherokee county. 

On the trial of the case, the plaintiff proved the locus in 
qw) and possession of the tenant, and read the grant from 
the State to Joseph Smith for the land in dispute, and closed 
his testimony. 

The defendant introduced various deeds, which it is not 
neoBBBary to describe in this statement, and proved by Col. 
JamfiB B. Brown, attorney for the plaintiff, that he did not 
koow Jos^h Smith, the grantee, had never been employed 



446 SUPREME COURT OF GEORGIA, 

Keeter V8, Smith. 

by him, had no connection with him, and had never had any 
intercourse or correspondence with him whatever; that he 
was employed by Mackey A. Keith, who claimed to own the 
land, to bring and prosecute this case, and that the aamewas 
being prosecuted for Keith's benefit. 

Defendant also proved by Mackey A. Keith, that he deliv- 
ered the grant, with some deeds, to Col. James fi. Brown, 
and employed him to bring and. proset^ute this case; that he 
did not know Joseph Smith, the grantee; had never bought 
the land from him, and had no authority to use his name or 
title in this case, except that he had the grant to Smith, and 
claimed title to the land. 

Counsel for defendant moved to dismiss the action, on the 
ground that it appeared, by the proof, that Mackey A. Keith 
was prosecuting said case for his own benefit, and was using 
the name and title of Joseph Smith without his authority or 
consent, and without privity with Smith, for the purpose of 
ousting one in possession of the land under claim o( right 
and title. 

The presiding Judge overruled the motion to dismiss, and 
defendant excepted. Counsel for defendant also asked the 
Court to charge the jury, "that if they were satisfied, from 
the evidence, that Joseph Smith, the grantee, never employed 
counsel to bring and prasecute this case, and never gave 
any authority for the use of his name or title, and that Keith 
is using Smith's name and title without his consent, and 
without privity or connection with Smith, then the plaintiff 
cannot recover." 

The Court refused so to charge, and defendant excepted. 

The jury found for the plaintiff the premises in dispute 
with costs of suit. 

Counsel for defendant then made a motion for a new trial, 
based upon several grounds, and amongst them, on the 
ground : 

That the Court erred in not dismissing the case upon the 
motion of defendant's counsel, and in refusing to charge the 
jury as hereinbefore stated. 



ATLANTA, MARCH, TERM, 1861. 447 

Eeeter vs. Smith. 

The Court refused the new trial, and the writ of error in 
this case is prosecuted to reverse that judgment. >^ 

Irwin & Lester, for plaintiff in error. 

J. R. Brown, for defendant in error. 

By the Court. — Jenkins, J., delivering the opinion. 

There was in this case, in the Court below, a motion for a 
new trial on several grounds, all of which being overruled, 
and the motion refused, plaintiff in error excepted* One of 
these grounds assigns error in the refusal of the Court to 
dismiss the suit, after the evidence on both sides was closed, 
because it appeared from the proof, ''that one Keith was 
prosecuting said action of ejectment, solely upon the demise 
of one Joseph Smith, for the benefit of said Keith, without 
having connected himself with the title of said Smith, and 
without any authority from him to use his name, to oust one 
in possession of the land under claim of right and title/' 

Another ground assigns error in the refusal of the Court 
to charge, when so requested, that under such circumstances 
the plaintiff could not recover. 

The question involved in both grounds is the same, and 
was decided by this Court in Adams et al., vs. McDonald, 
29th Ga. Reports, 571. The facts in that case and in this, 
(pwad the question under consideration, are identical, and it 
was there ruled, that " to authorize the plaintiff in ejectment 
to use the name of a third person as lessor, he must show 
that he has a bona fide subsisting claim to the premises, and 

that there is a connection between his title and that of the 

party upon whose demise he seeks to recover; or that he has 

the authority of that person in whom the paramount title is 

vested, to institute the suit in his name. 

The learned Judge cites in support of that ruling the 

cases* Crotich vs. Turner ei aL, 17th Ga. Reports, 487, and 

Kioaey vs. Sensbough, Ibid, 640. 

The judgment of the Court below, in the case at bar, is 

in conflict with that case, and must therefore be reversed. 



448 SUPREME CX)URT OF GEORGIA. 

Hesters et aL^ vs. Coats. 

Courts should not permit parties to avail themselves of the 
fictitious character of the action of ejectment to perpetrate 
injustice to others. 

Let the judgment be reversed. 



John Doe, ex, dem., Zachariah Hesters et al, plain- 
tifis in error, r«. Richard Rob, casual ejector, and Cal- 
vin Coats, tenant, etc., defendants in error. 

1. A sheriff's deed is admissible ia evidence as color of title, without 
the execution under which the property was sold, and without any 
evidence accounting for its absence. 

2. Before the same was barred, a suit in ejectment was brought on the 
several demises of H. and B. and C. Judgment being rendered 
against the plaintiffs, G. alone entered an appeal. After the ezpin- 
tion of seven years from the commencement of defendant's posses- 
sion, the action was dismissed, and recommenced within six months 
from the time of dismissal, but not within six months from the date of 
the judgment : Heldj that under this state of facts, the parties who 
did not appeal were within the saving clause of. the Statute of Limita- 
tions, and that their right of action was not barred. 

Ejectment in Heard Superior Court. Tried before Hon. 
Dennis F. Hammond, at the September Term, 1860. 

This was an action brought in the name of John Doe, on 
the several demises of Zachariah Hesters, Bennett Bell, and 
James Bell, against Richard Roe, casual ejector, and Calvin 
Coats, tenant in possession, for the recovery of lot of land 
No. 274, in the 9th district of Heard county. 

The action was commenced on the 20th day of September, 
1852. 

The defendant pleaded the general issue and the Statute 
of Limitations. The plaintiff, on the trial, proved the locu^ 
in quoj and possession of the tenant at the commencement of 
the suit, and then read the grant from the State of Geor- 
gia to Zachariah Hesters for the land in dispute, and rested 
his case. 



ATLANTA, MARCH TERM, 1861. 449 

Hesters etaL,vs. Coat«. 

The defendant then adduced testimony as to his possession, 
and of those under whom he claimed, commencing as far 
back as the month of December, 1841, and also introduced 
a sheriff^s deed to William B. W. Dent for the land in 
dispute. 

Counsel for plaintiff objected to the deed as evidence, on 
the ground that no privity of title was shown, between 
Hesters and the defendant in fi. fa., as whose property the 
land was sold, and on the further ground that the sheriff's 
deed was not accompanied by the judgment or Ji. fa. under 
which the land was sold. 

The Court sustained the objection and repelled the paper 
as evidence of legal title, but upon hearing evidence as to 
the existence and loss of the fi.fa., and that a sufficient but 
uDsaccessful search had been made for the same, the Court 
admitted the sheriff's deed in evidence, as color of title. 

The plaintiff proved by the record, that a former suit for 
the same land between the same parties had been commenced 
before the expiration of seven years from the beginning of 
defendant's possession, in which there was a confession of 
judgment by plaintiff, and an appeal entered by James Bell 
alone, and that the suit was dismissed at April Term, 1852. 
The plaintiff also introduced proof to show that James 
Bell, as whose property the land was sold, did not reside in 
the county from which the fi. fa. issued, and was never 
served with the process, and that the Court giving the judg- 
ment did not have jurisdiction of the person of Bell, so as to 
render a valid judgment against him. 

There was much other testimony adduced on the trial, but 
it is not necessary to set it forth here. 

The plaintiff's counsel requested the Court to give various 
charges, which need not be set forth in this statement, because 
they are not necessary to a proper understaifding of the ques- 
tions decided by this Court in the case. 

The charge of the Court, that forms the chief subject of 
complauiiy is fully set out in the opinion of the Court, as 
delivered by Mr. Justice Jenkins, to which the Reporter 

ref^S. 

Vol*, xxxu— 29. 



450 SUPREME COURT OF GEORGIA. 

Hesters et oU., vs. Coats. 

The jury returned a verdict for the defendant, and oouDsel 
for plaintiff moved for a new trial, upon the grounds, amongst 
others : 

1. That the Court erred in admitting in evidence the 
sheriff's deed to Dent, as heretofore stated. 

2d. That the Court erred in charging the jurj as set forth 
in the opinion of the Court. • 

The presiding Judge having refused the new trial, the writ 
of error in this case is brought to reverse that judgment 

Oliver, Bubke, Mabry, for plaintiff in error. 

L. H. Peatherston, for defendant in error. 

By the Court, — Jenkins, J., delivering the opinion. 

This case came before the Court, on exception to the judg- 
ment of the Court below, refusing a motion for a new trial, 
predicated on three grounds, which we will consider in their 
order. 

The plaintiff below laid three demises in his declaration, 
viz : of Hesters, of Bennett Bell, and of James Bell. 

Defendant pleaded the general issue and the Statute of 
Limitations. There is no contest as to the locus in qii/o. 
Plaintiff introduced a grant from the State of 6eoi]gia to 
Hesters, (his first lessor,) and closed. 

Defendant relied on the sheriff's deed for the land, recited 
to have been sold as the property of James Bell, (plaintiff's 
last lessor,) and possession under it, for seven years anterior 
to the commencement of the suit. Plaintiff rebutted this 
claim of title by showing that within seven years from the 
commencement of defendant's possession, another suit between 
the same parties (of which he introduced an exemplification,) 
had been commenced and dismissed, and that tliis suit was 
brought within six months from the dismissal of the prior 
suit, thus bringing the case within the saving clause of the 
Statute of Limitations. It appeared, however, from the exem- 
plification of the former suit, that there had been in it a con* 
fession of judgment by the plaintiffs to the defendants, 



ATLANTA, MARCH TERM, 1861. 451 

Hesters ei a2., vs. Coats. 

reserving the right of appeal, and that James Bell alone, of 
the plaintiflF's lessors, had entered an appeal, which was sub- 
seqaeotly dismissed ; and further, that more than six months 
had ekpsed between this confession of judgment and the 
commencement of the second action. 

Defendant therefore insisted that this exemplification was 
no reply to his statutory defence. 

1. The first ground upon which the plaintiff rested his mo- 
tion for a new trial, was, that the Court below erred in admit- 
ting in evidence the sheriff's deed to Dent, under a sale of the 
land as the property of James Bell. The objection to this 
testimony is predicated partly upon the absence of the origi- 
nal^. /a., under which the sheriff sold, as not having been 
sufficiently accounted for, and partly upon what the plaintiff 
insists, shows that the Court, rendering the judgment under 
which the Ji, fa, i^ued, had no jurisdiction of the case. 

I dispose of all connected with this fi. fa, and the judg- 
ment, by adverting to the fact, appearing in the record, that 
the Court admitted the deed only as color of title, and as 
i5uch it was good evidence, without the execution, or any evi- 
dence accounting for it. 

2. The second ground alleges error in that the Court 
refused to give certain charges requested by the plaintiff, and 
gave other illegal charges. 

Begarding the charges asked and refused, I deem it un- 
necessary to say anything, as they are generally unimportant 
iti this case. I come to the charge given affecting the ques- 
tion upon which the case must turn. 

It appears that the Court charged the jury substantially, 

that inasmuch as this case was not brought within seven years 

from the commencement of defendant's adverse possession 

under color of title, the defence was good unless rebutted. 

That the exemplification of the former suit was no rebuttal 

of that defense, because as to the plaintiff's lessor, Hesters, 

that smt terminated when he confessed judgment, and this 

suit noft having been brought within six months after the 

cooftttioii of judgment, the saving clause of the statute did 

not itIthmiii Hesters, and as plaintiff on this trial had shown 



452 SUPREME COURT OF GEORGIA. 

Hesters etal.jvs. Coats. 



title only in Hesters^ he was barred by the Statute of Limi- 
tations. 

This is the substance of the charge, and this charge was 
predicated upon the construction of the Act of 1839. Cobb's 
Dig., 500, on the subject of appeals. This act provides that 
if one of several plaintiffs or defendants appeals^ the whole 
record shall go up, but only the party appealing shall be 
subject to damages for a frivolous appeal. 

This Court has often been called on to construe and give 
effect to that statute, and has found at every stage a puzzk 
They have considered those plaintiffs or defendants not ap- 
pealing, out of Court, for some purposes, and in Court for 
others, after the appeal. 

The difficulty of construing the statute consistently and 
satisfactorily, rather increases than diminishes, when it is 
attempted to apply it to actions of ejectment. In Einslv 
vs. the Lessee of Sensbrough, 17 Gra. Rep., 540, the Court 
says: "In ejectment, where one of the plaintiff 's lessors 
appeals, (just this case,) we are not sure but the cause is 
carried to the appeal for all of them." 

But there has been enough decided, touching this statute, 
to determine its application to this case. In Allison vs. 
Chaffin, 8 Ga. Rep., 330, this was ruled, " When there are 
several parties plaintiffs or defendants, and only one appeals, 
under the Act of 1839, the party not appealing is bound by 
the first verdict, but as the whole record is taken up by the 
appeal, the plaintiff is not entitled to have execution against 
the defendant not appealing until the final trial of the 
appeal." Again, in Stell, guardian, vs. Glass, 1 Kelly, 475, 
it was ruled that ** where one of several defendants enters an 
appeal under the Act of 1839, and one of the other two dies, 
between the first and second trial, he was a party to the 
appeal, so far as to require his representative to be made a 
party to the cause, before it could proceed." Now these 
rulings settle the question, that whatever may be the effect 
upon the parties rights by his failure to appeal, with a 
co-defendant, he continues a party to the case until final 
judgment on the appeal. As no action can be taken against 



ATLANTA, MARCH TERM, 1861. 453 

Ralston vs. Field. 

im under the judgment to which he has submitted^ pend- 
ig the appeal, so, pending the appeal, he is not at liberty to 
o anything inconsistent with the pendency of the suit. And 
tie same rule is equally applicable to plaintiffs. Hesters 
lien was not at liberty to commence another action of eject- 
aent whilst the appeal of James Bell held the first in 
^ourt. He was a party to that case until it was disposed of 
in the appeal. The six months within which he was 
^rivil^ed to renew the suit, after the completion of the 
even years adverse possession, did not, therefore, commence 
o run until the appeal was dismissed. The appeal of Bell 
letained him in Court after judgment confessed, and there-^ 
fore brought him within the saving clause of the statute. 

We, therefore, think that this charge was erroneous, and 
is it probably controlled the action of the jury, the judg- 
ment refusing a new trial must be reversed, and the cause 
sent back for a re-hearing. 

Let the judgment be reversed. 



Lewis Ralston, claimant, plaintiff in error, va, John D. 
Field, plaintiff in^./a., defendant in error. 

1. Where the titled to land vests in the defendants 'mfi.fa,j subsequent to 
the date of the judgment from which the^. fa. issued, the lands are 
siibject to the lien of such judgment. 

^ Certain lands were levied on as the property of E., to which C. inter- 
posed a claim. Pending the claim the lands were sold at sheriff's 
sale as the property of C, and R. became the purchaser. The claim 
of C. was withdrawn, and R. interposed his claim : Held, that R. hav- 
ing purchased the land pending a levy and claim, was chargeable with 
notice of any fraud that may have characterized the transfer of the 
lands from K. to C, the claim to which was then pending. 

^- It is no error for the Court to refuse a charge to the jury, founded 
npon an assumption that the evidence does not justify. 

^' A levy will not be dismissed on account of the time that has elapsed, 
unless upon motion in the nature of a rule niH, calling upon the party 
to show cause why he does not proceed. 

&• Under the Act of 1821, a deed is presumed to convey a fee simple, 
nnless the contrary appears by proof. 



454 SUPREME COURT OF GEORGIA. 

Ralston vs. Field. 

6. Where a defendant in Ji. fa. has a bond for titles to land, and has 
paid the purchase money, the land is subject to the lien of jadgmeats 
against him. 

FL fa. and claim, in Lumpkin Superior Court. Tried 
before Judge Rice, at the July Term, 1860. 

The questions presented for adjudication by the record in 
this case, arise out of the state of facts following, to-wit: 

On the 9th day of July, 1836, James Cantrell recovered 
two judgments in the Justice's Ck>urt of the 837th militia 
district of Lumpkin county, against Samuel King, and on 
the 11th day of June, 1836, John Hills also recovered two 
judgments in the same Court, against said King. 

From these judgments, executions were regularly issaed, 
and on the 6th of June, 1837, Hills transferred and assigned 
his two/, fas, to John D. Field, and on the 19th of June, 
1837, Cantrell also assigned his two fi. fas. to said Field. On 
the 18th day of July, 1839, these/, /cm. were levied upon 
lots of lands Nos. 1055 and 1080, in the 12th district 
of the 1st section of said county of Lumpkin, as the prop- 
erty of Samuel King, the defendant, a return, that no per- 
sonal property could be found to satisfy the /. /a*., having 
been previously made. 

In 1842, 'Miller, Chamberlain & Co., and Tully Choice 
interposed claims to the land, which were withdrawn. After- 
wards, in October, 1843, Tully Choice filed a claim to one of 
the lots, and in November, 1843, Miller, Chamberlain & Co., 
interposed a claim to the other lot. These claims conUnoed 
in Court until 1851, when they were withdrawn. On the 
17th of April, 1851, Lewis Ralston interposed his claim to 
both lots. These claims were all pending, in succession and 
continuously, from the time the first one was filed until the 
case was tried. 

On the trial the plaintiff introduced the /. fas. with the 
levies thereon, and proved that Samuel King, the defend- 
ant in /. fas., was in possession of the land levied on, from 
1535 to 1840, and that he showed to his overseer, Reuben 
Moss, a deed to one of the lots, in the year 1836 or 1837, 
and then rested his case. 



ATLANTA, MARCH TERM, 1861. 465 

RaUton m. Field. 

Coansel for claimant then moved to dismiss the levy, on 
the ground that the same had lapsed, but the Court over- 
ruled the motion, and claimant excepted. 

Claimant then introduced in evidence a grant from the 
State to Lewis Metts for one of the lots, (1055,) and a deed 
from Metts to TuUj Choice, dated 22d April, 1840, and 
recorded 3d September, 1840. Also, a grant from the State 
to John P. Riley for the other lot, (1080,) and a deed from 
John P. Riley to Tully Clibice, dated 24ih of April, 1840, 
and recorded 19th July, 1851. 

Claimant then proved the existence and loss of a fi. /a. 
from Lumpkin Superior Court, in favor of Daniel Davis, 
against Tully Choice, maker, and Jediah Blackwell, endorser, 
and introduced a deed from James Kennedy, sheriff, to 
Lewis Ralston, the claimant, reciting a sale of the land as 
the property of Tully Choice, under the lost fi. fa,, to claim- 
ant, the highest bidder, on the first Tuesday in March, 1845. 
The deed was recorded 27th March, 1845. 
Claimant then rested his case. 

Plaintiff in rebuttal made oath, that he had made search 
for a deed from Lewis Metts to Samuel King, the defendant 
in ji. fa.j for lot No. 1055 ; that he had been in the neigh- 
borhood of Mett's former residence, in Sumter county, and 
was informed by the former neighbors of Metts, that he had 
removed to the State of Alabama; that he also called on 
John P. Riley, in his inquiry and search for a deed from 
said Kiley to said King, for lot No. 1080, and Riley said 
that he had no such deed, and knew nothing of it. The 
plaintiff also stated, that he did not know where said deeds 
were. 

Plaintiff then proved by William M. Varnum, that in the 
Spring of 1837 or 1838, Samuel King employed him to take 
a bond he held on Lewis Metts, of Sumter county, and one 
he held on John P. Riley, and pay to Metts a balance due 
on the purchase and take a deed from Metts to King for lot 
No. 1055, and a deed from Riley to King for lot No. 1080, 
all €d which, as King's agent, he did, and returned to 
Lumpkin county and delivered the deeds to King; that 



466 SUPREME COURT OF GEORGIA. 



Ralston m. Field. 



he thought he witnessed the deeds^ but is not certain, 
and that King was in possession of the land from about 
1836 to 1840, when he left Georgia; that in the Spring of 
1840, Tully Choice employed him to take these deeds to 
King back to Metts and Riley, and get them, to substitute 
for them a deed directly to said Choice, which was done; 
that the witness had no interest whatever in the land, aod 
acted in the one case as agent of King, and in the other as 
agent of Choice. , • 

Counsel for claimant objected to this testimony of Yar- 
num, 80 &r as the same went to prove the contents of the 
deeds from Metts and Biley to King, on the ground that 
there was no sufficient proof of their execution, and that 
plaintiff had not laid a sufficient foundation for the introduc- 
tion of secondary evidence. 

The Court overruled the objection, and the daimant ex- 
cepted. 

Amongst other things, the presiding Judge charged the 
jury, '' that if Metts and Riley executed deeds to King for 
the land in controversy, and if, after the lands were levied oo, 
as the property of King, Tully Choice returned those deeds 
to Metts and Riley, and procured them to execute the deeds to 
Choice, now in evidence before them, then it would be their 
duty to find the lands subject, and the fact that any portion 
of the deeds introduced by claimant had been recorded with- 
in twelve months from the date of their execution, would not 
change the rights of the parties, or their finding in this case.'' 

To this charge claimant excepted, and requested the Court 
to charge the jury '' that if Varnum was interested in the 
purchase of the land by King, or was a partner with him in 
the purchase, he was incompetent to attest the deeds,'' which 
charge the court declined to give, and claimant excepted. 

The jury found the property subject to the executions, and 
the claimant seeks a reversal of that judgment on the grounds 
of exception set forth in this statement. 

Irwin & Lester and Wm. Martin, for plaintiff in error. 
James R. Brown, contra. 



ATLANTA, MARCH TERM, 1861. 467 

^ Ralston vs. Field. 



-By the Court. — Lumpkin, J., delivering the opinion. 

1. If Vamum is to be believed, this is a plain case. It 
seems that in the Spring of 1837 or 1838, he was em- 
ployed by Samuel King to take the bonds for titles which 
he held on Metts and Riley, whether as vendee or transferee, 
witness does not recollect, and it is immaterial, for lots No. 
1055 and 1080, pay the balance of the purchase money, and 
take deeds to King, which he did. Here, then, is the title 
vested in King subsequent to the Justice's Court fi. fas. 
which Field bought of Hills & Cantrell. That in 1840 he 
was employed by Tully Choice to take these same two deeds 
to the grantees, (how Tully Choice came by them does not 
appear,) and have them exchanged for deeds to Choice ; and 
this also Varnum did — of course the two lots of land are 
subject to the lien of Field's executions. 

2. The levies were pending on these fi. fas from 1843 
to 1851. Lewis Ralston, one of the claimants, bought in 
1845, and of course is chargeable with notice of the fraud in 
the transfer of these lands from Samuel King to Tully 
Choice, the claim to which was then pending. 

3. There is no evidence that William M. Varnum was a 
partner of King, or interested in the lands. The Court 
was right in refusing to give a charge founded upon such 
assumption, there being no evidence to justify it. Indeed 
the evidence seems rather to negative this hypothesis, for he 
Beems really to have acted as the agent of Tully Choice in 
securing an exchange of the title papers in his favor. 

4. As to the Court refusing to dismiss the levy on account 
of the time which had elapsed, it is sufficient to reply, that 
^0 motion was made by the claimant for that purpose, and a 
cause is never dismissed without motion, in the nature of a 
rule nisiy calling on the opposite party to show cause why he 
do«not proceed. 

5. It is objected that Varnum does not prove the contents 
of the deeds. He states that they were deeds to lots of land 
No. 1056 and 1080, and under the Act of 1821, they are 
presumed to convey a fee simple, unless a less estate was 



468 SUPREME COURT OF GEORGIA. 



Gleland vs. Low. 



limited in the deed, and this proof was for the claimaDt to 
make. We think the originals were sufficiently accounted for. 

6. But suppose no deeds were taken; what of that? 
Yarnum swears that he paid the balance of the purchase 
money to Metts and Riley for King, and this makes the 
land subject to the judgments against King. 

Let the judgment be affirmed. 



W. C. Cleland, plaintiff in error, vs, John Low, defendant 

in error. 

1. When the Coart is asked to give a charge to the jary, inconsistent 
with the law and facts of the case, it is not error to refuse the charge. 

2. A charge created upon her separate estate, by a married womaQ) 
which may be enforced in equity, is a sufficient consideration to sup- 
port a personal contract. 

8. A verdict well founded in law and in fact will not be disturbed. 

Action on a due bill, in Cobb Superior Court, Tried 
before Judge Rice, at September Term, 1860. 

This action was brought by John Low against Williamina 
C. Cleland to recover the amount of a due bill given by 
defendant to plaintiff, and dated the 4th of May, 1852, for 
61,260 00. 

On the trial of the case, the plaintiff introduced the due 
bill sued on, and rested his case. 

The defendant then read the depositions of her brother, 
Thomas J. Waters, who testified, that in the year 1851 the 
plaintiff endeavored to induce him to endorse for defendant 
in the matter of this debt, saying, that if witness would do 
80 he would indulge defendant for twenty years ; that plain- 
tiff also stated, that defendant ought not to pay the debt, for 
that it was a debt contracted by Dr. James Cleland, the bos- 
band of defendant, in his life time, for the rent of a house 
and a wharf lot in the city of Savannah. The witness also 
testified that Dr. James Cleland was dead, and was insolvent 



ATLANTA, MARCH TERM, 1861. 459 

Gleland Pt. Low. 

at the time of his death, and for several years before that 
time. 

The plaintiff replied to this testimony by introducing the 
depositions of James Mclntyre, William M. Leigh, H\ Kuapp 
and John E. Ward, by whom it was shown that Dr. James 
Cleland and family occupied a house and lot in the city of 
Savannah, on Broughton street, belonging to the plaintiff, 
and which was worth, for rent, from $360 00 to $450 00 per 
annum ; that Dr. Cleland was insolvent at and before his death, 
and that defendant had a separate estate, and made her own 
contracts. Two of the witnesses said that defendant con- 
tioned to occupy the house and premises after the death of 
Dr. Cleland. 

Plaintiff also read in evidence a note written by the late 
B. H. Charlton, Esq., and signed by the defendant, of which 
the following is a copy, to-wit : 

"To Captain John Low : 

"Dear Sir — As I am indebted to you in the sum of 
$675 00 for house rent, which you permitted me to occupy, 
at my request and upon the assurance that you should be 
paid out of my separate estate, I hereby deliver to you a 
negro man, Richard, to be retained by you lintil, out of the 
hire and services of said slave, you shall be paid in full the 
above demand. It being understood by you, however, that 
I have only power over the services of said slave during my 
life. "Yours respectfully, 

"W. CLELAND. 

''Avffud 4th, 1848." 

In behalf of defendant, it was positively testified, by 
members of defendant's family, that she did not occupy 
plaintiff's house a single day after Dr. Cleland's death. 

Ooansel for defendant requested the presiding Judge to 
cliuge the jury : " that if in 1848 Mrs. Cleland owed Low 
the sum of $676 00, or any other sum of money, and that 
she tfimed over to Low a negro man, in which she owned a 
li fe) ccfcat e, to be retained by Low until out of the hire and 



460 SUPREME COURT OF GEORGIA. 

Cleland va. Low. 

services of the negro said sum should be paid, that was 
a settlement of that debt, unless the evidence showed a 
change of the contract, and that the giving of a due bill 
after tlvat is not of itself sufficient evidence of a change in 
such contract." 

The Court declined to give the charge, and defendant 
excepted. 

The jury found for the plaintiff the amount of the due 
bill, with interest and cost. 

Counsel for defendant then moved for a new trial, on the 
grounds : 

1st. Because the verdict is contrary to law, contrary to 
the evidence, and strongly and decidedly against the weight 
of the evidence. 

2d. Because the Court erred in refusing to give the charge 
to the jury as requested, and as hereinbefore set forth. 

The Court refused the new trial, and error is assigned in 
such refusal. 

Irwin & Lester, for plaintiff in error. 

A. J. Hansell, for defendant in error. 

jBy the Court. — Jenkins, J., delivering the opinion. 

The plaintiff in error moved the Court below for a new 
trial on two grounds, and excepts to the judgment refusing 
the motion on both grounds. 

I shall consider, first, that which assigns error in the 
refusal of the Court to charge as requested. 

1. Counsel requested theConrt to charge, that the delivery" 
of the slave by the defendant, and the reception of him by 
plaintiff, on the terms set forth in defendant's note accompany- 
ing the slave, was a settlement of the debt mentioned in thsft 
note, unless the evidence showed a change of the contract, 
and that the subsequent giving of a due bill including that 
indebtedness, is not sufficient evidence of a change in the 
contract. This request assumes that the delivery of the 
•lave Richard, under the terms stated in defendant's note of 



ATLANTA, MARCH TERM, 1861. 461 

Cleland m. Low. 

the 4th August, 1848, was a payment of all their existing 
indebtedness. We do not so regard it. It was more in the 
nature of a collateral security. It was an appropriation of 
the hire of that slave to the payment of the debt until paid. 
The evidence 'shows clearly enough that a portion of the 
sum then due, was afterwards included in the due bill now 
sued upon. This was the act of the parties, and is a safer 
reliance than any inferences third persons may draw from 
the note itself, though we think the note and the due bill 
entirely consistent, the one with the other. 

We think the Court committed no error in refusing to 
give the charge. 

The second ground was, that the verdict of the jury is 
contrary to law, contrary to evidence, and strongly and 
decidedly against the weight of evidence. The defendant, at 
the time the debt, liquidated by the due bill sued on, was 
coDtracted, was a/em« covert, having a separate estate under 
her immediate control, the income of which she received 
and disbursed. She was accustomed to make contracts for 
herself. Her husband was insolvent. The note to plaintiff, 
dated 4th August, 1848, was written during the life of her 
husband. The due bill was given after his death, when she 
was 8ui juris. Her defence here is, that the note is without 
consideration. It is not denied that the due bill was given 
for the rent of the tenement referred to in the note of August, 
1848, but it is said that at the time of the renting and occu- 
pancy of the house she could make no contract that would 
bind her separate estate, and that therefore there was no con- 
sideration for the due bill. The instrument creating this 
separate estate is not before us. It is contended on the one 
hand that a feme covert cannot bind her separate estate unless 
the instrument creating it expressly authorizes her to do 
9o; on the other, it is insisted that she may do so, unless 
expressly restrained by the instrument creating it. Thus 
eaiA party seeks to throw upon the other the ornia of show- 
ing the provisions of that instrument. Here I remark, first, 
that the evidence discloses that it was a marriage settlement, 
to the defendant a separate property ; secondly, that 



462 SUPREME COURT OF GEORGIA. 

I 1 ■ ■■ » ■ w ^M !■ ■■■■■»■ ^.^^^^.^^^^^m^^>m^^^ 

Gleland vs. Low. 

the inquiry is not directly whether this contract binds the 
corpus of the separate estate^ or only the income; or whether 
both are free from its obligation. The question is, whether 
a contract made by the defendant, whilst afeme covert, hav- 
ing a separate property, is a sufficient consid^ation to sup- 
port the contract now in litigation, made after she had become 
2l feme sole f ' Should the attempt ever be made to enforce 
this contract, by final process, against this separate property, 
the rights of others may become involved, and it may be 
necessary to investigate carefully the nature and incidents of 
this separate estate ; but this question we are not now called 
upon to adjudicate. That we are now considering respects 
only a personal liability, the sufficiency of a specified consid- 
eration, to support a personal contract, and thus the liability 
of the separate estate to a contract made during coverture, 
comes collaterally under review. 

2. What then, under the facts of this c&se, are the legal 
presumptions? "If a debt of the wife is contracted after 
mai^ljoge, it is prima fade chargeable on her separate estate." 

1 Parsons, 4th ed., 306 b, citing Greenough vs. Wigginton, 

2 Green., 435, and Gardner vs. Gardner, 7 Paige, 112. A 
married woman's "separate estate will, in equity, be held 
liable for all the debts, charges and incumbrances, and other 
engagements, which she does expressly or by implication, 
charge thereon.'' 2d Story's Eq., sec. 1399, citing Hulme vs. 
Tenant, 1 Bro., Ch. R., 16, 20. Brown vs. Little, 14 Vesey 
302. 2 Roper on Husband and Wife, ch. 21, sec. 3. Pea- 
cock vs. Monk, 2d Vesey, 190. Grigby vs. Cox, 1 Ve8.,517. 
Greatly vs. Nohl, 3 Mad. R., 94. The general rule recog- 
nized by these authorities is, that the separate property of a 
married woman is prima faxsie chargeable with her debts 
contracted during coverture, and if she does so charge it 
expressly or by implication, the charge will be enforced in 
equity. It cannot be doubted that a charge upon property, 
which may be enforced in equity, is a sufficient consideration 
to support a personal contract. So we hold the law of the 
case. 

Now as to the facts upon the main points, there is a oon- 



ATLANTA, MARCH TERM, 1861. 463 

Cleland vs. Low. 



flict in the testimony, and strangely enough, each party draws 
fixnn the other directly or indirectly the conflicting statements. 
The defendant in error is made to say that the primary con- 
tract of rent was not that of plaintiff in error, but of her 
husband, and timt she ought not to pay it The plaintiff in 
error is made to say that the primary contract was hers, and 
that the defendant in error was assured that he "should be 
foid out of her separate eaiaieJ' There is, however, this 
difference in the pieces of conflicting evidence. The defend- 
ant in error speaks through a third person, detailing from 
memory a conversation several years after it occurred. The 
plaintiff in error speaks, by a note in writing, drawn by an 
able adviser, and signed by herself, whilst these events were 
transpiring, she being then in the occupancy of the prem- 
iaa. On this latter evidence the jury very properly relied. 
The plaintiff in error, then, while covert, had a separate 
estate which she controlled, disposing of the income as she 
pleased. It was her custom to make contracts. This con- 
tract, (for rent,) made during coverture, she expressly charged 
apon her separate estate, and partially discharged by appro- 
priating to it a portion of the income. The presumption is, 
that she had authority to charge her separate estate with her 
contracts. There is no reasonable doubt as to her power to 
charge her contracts upon the income of that property during 
her life. She did actually for a time appropriate the income 
from a portion of it to the payment of the contract. Sub- 
sequently, having become aui juris, she substituted the per- 
sonal contract now in litigation. We are fully satisfied that 
h is supported by a sufficient consideration, and that the ver- 
dict of the jury is well founded in law and in fact. 
Ijet the judgment be affirmed. 



464 SUPREME COURT OF GEORGIA. 

McLendoD vs, Kelly & Sallee. 

Freeman McLenbon, plaintiff in error, rs, Kelly A 

Sallee, defendants in error. 

1. Where a case has been fairly submitted to the jury upon the facts, 
and there is no question of law involved, and the presiding Judge 
refuses a new trial, this Court will not reverse the judgment, unless it 
appears that the jury acted from bias or prejudice, cormption or pas* 
sion, or manifest mistake. 

Assumpsit, in Meriwether Superior Court. Tried before 
the Hon. O. A. Bull, at the August Term, 1860. 

This was an action brought by the firm of Kelly & Sallee 
against Freeman McClendon to recover $103 00, the value 
of certain pork which plaintiffs alleged they had sold to 
defendant, and for which he was indebted to them. 

The defendant simply pleaded the general issue. 

The proof on the trial was very brief, and showed that plain- 
tiffs delivered to Samuel W. Moyer, about the 1st of January, 
1857, fourteen hundred and seventy-two pounds of pork, at 
seven cents per pound, and charged it to defendant, by 
direction of Moyer; thai plaintiffs had furnished to Moyer 
goods in the same way the year before, and charged them to 
defendant, who paid for them without objection ; that Moyer 
was working in defendant's shop, and boarding some of 
defendant's hands at the time ; that on two or three occasions 
the defendant was called on for payment of the account sned 
on, and he said it was all right, and that he would pay it ; 
on another occasion the defendant was called on to pay the 
account, and complained o|* Moyer's extravagance, and ^id 
he had no funds of the firm of McLendon & Moyer on 
hand, and that if the plaintiffs would get Moyer's note for 
$50 00 he, defendant, would pay the balance ; that plaintiffs 
had no direct authority, either verbal or written, to charge 

the goods to defendant, except the statements of Moyer as 
tkforesaid. 

The jury found for the plaintiffs $103 00, with costs of 
suit, and counsel for defendant moved for a new trial, on the 
ground: 



ATLANTA, MARCH TERM, 1861. 465 

Lewis V8, McAfee. 

1st. That the verdict was contrary to law, contrary to the 
testimony, and strongly and decidedly against the weight of 
the evidence in the case* 

The presiding Judge overruled the motion and refused the 
new trials and that decision is the error complained of. 

£. H. Hill and Adams & Knight, for plaintiff in error. 

George A. Hall, for defendants in error. 

* 

By the Court. — Lijmpkik, J., delivering the opinion. 

There is no question of law involved in this case, and it 
has been fairly submitted upon the facts to the jury. They 
have found a verdict for the plaintiff, and the Court has 
refused to grant a new trial.* We do not feel called on to 
reverse the judgment. 

Indeed, the argument of the facts in any case, with all 
the zeal and particularity of a jury trial, is felt by this Court 
to be a grievous burden, and unless we are satisfied that the 
jury acte<l from bias or prejudice, corruption or passion, or 
manifest mistake, we shall rarely feel it our duty to order a 
re-hearing upon the testimony, where it has been refused by 
the Circuit Judge. 

Let the judgment be afQrmed. 



John W. Lewis, plaintiff in error, vs. John M. McAfee, 

defendant in error. 

« 

1. If a negro be hired to a Railroad for a particular service, and he is 
nsed by the Road for a different purpose or service from that intended, 
and an accident happens to him in the performance of such service 
that caases his death, the Road is liable to the owner for his value. 
Moot especially is this bo, when such accident results from the gross 
neglect and mismanagement on the part of the employees of the 
Road. 



5, ia Fulton Superior Court. Tried before Judge Bull, 
at the October Term, 1860. 
"Vol. xxxn — 30. 



466 SUPREME COURT OF GEORGIA. 

Lewis V8, McAfee. 

John M. McAfee hired a negro man, by the name of 
Peter, to the Western and Atlantic Railroad, for the year 
1857. The only witness who speaks as to the terms and 
purposes of the contract of hiring, states that his recollection 
is, that the negro was hired to do shop work. The negro 
was put to service on a passenger train, as a train hand, to 
attend the break and wait upon the passengers. In this 
capacity he rode on the train from Atlanta to Chattanooga 
and back, and that he was permitted to ride on the tr&iti 
to Marietta once and sometimes twice a week, to see his 
wife. The conductor on the train knew that he was thus 
serving as a train hand, and that he was riding on the cars 
to Marietta. The negro worked mostly as a train hand. 
In the Spring of 1857, the negro boy went aboard one of the 
trains of said road^ (other than the one to which be belonged 
as a hand,) at the passenger depot in Atlanta, and after 
riding on the train some quarter of a mile from the starting 
point, the negro jumped from the steps of the platform of 
the second car of the train, and was run over by the cars 
and so injured that he died in twenty-four hours after 
receiving the injury. The conductor of the train from 
which the negro jumped and was injured, did not know that 
the negro was aboard the train, and did not know that he 
jumped off, until the passengers reported the fkct to him. 
It was a rule of the road, that when a negro hand, belong- 
ing or attached to one train rode upon another, for the con- 
ductor of the train to which he belonged, or the superinten- 
dent of the road, to give him a pass, and no pass was given 
to Peter to go on the train from which he leaped. It was 
also one of the regulations of the road, that no train should 
be put to a speed exceeding the rate of ten miles an hour, 
until the train had passed the lower switch, on its way from 
Atlanta to Chattanooga. One witness, who saw the negro 
leap from the car, testifies that this rule was violated, and 
that the train by which the negro was injured was running 
at the time of the injury, and before it had passed the lower 
switch, and that the witness, who was a yard m^ter in the 
service of the road at the time, reported the conductor for 



ATLANTA, MAECH, TERM, 1861. 467 

Lewis vs. McAfee. 

running his train in violation of the rale. This witness 
states that the train was running at the rate of twentj-five 
or thirty miles an hour, when the negro jumped from the 
car. The negro had jumped from trains before, but was not 
injured, because the speed of the train was not so great. 
Just before the negro jumped off, the yard master signed 
him not to do so. The conductor of the train from which 
the negro leaped, states that at the time of the injury the 
train was running at the rate of six miles an hour. The 
n^ro was worth from $1,000 00 to $1,200 00. McAfee 
claimed damages for the loss of his negro, and made a 
demand for a settlement as required by the statute, and 
a settlement was refused. 

McAfee then brought an action to recover damages for 
the loss of the negro. 

On the trial of the case, the evidence adduced developed 
the foregoing facts, and the presiding Judge charged the 
jury: 

" That to entitle the plaintiff to recover, it must be proven 

that the slave was killed by the culpable negligence or 

carelessness of the agent or employees of the Western and 

Atlantic Railroad. That when a slave is hired for one 

purpose, to be employed in a particular service, and is put to 

a different and more dangerous service, and is killed or 

injured in consequence of that change in the character of 

the service, the party hiring him is liable to the owner for 

the damage sustained ; but it must be shown affirmatively, 

that the injury resulted from the change of employment, or 

from negligence or carelessness of the party hiring or his 

agents." 

The jury returned a verdict for the plaintiff for $1200 00. 
CSaansel for the defendant moved for a new trial on the 
gronnds : 

l0t« That the verdict was contrary to law and the charge 
of the Court. 

2d. That the verdict was against evidence, the weight of 
the evideDce, and was unsupported by the evidence on the 
issaiCB of the case. 



468 SUPREME COURT OF GEORGIA. 



Lewis vs, McAfee. 



The presiding Judge refused the new trial, and his deci- 
sion is complained of as error. 

Sims and Gaskill, for the plaintiff in error. 
A. W. Hammond & Son, contra. 

By the Court, — Lyon, J., delivering the opinion. 

The onlj question made in this case is, that the Court 
below should have allowed the motion for a new trial on the 
only ground taken therein : that the verdict was contrary to 
law, the charge of the Court, and against the evidence, the 
weight of the evidence, and not supported by the evidence 
on the issue, (a variety of the same things stated in different 
ways.) The Court below refused the motion, and we concur 
in that judgment. 

One of the witnesses, Wofibrd, testified that the negro was 
hired to the Western and Atlantic Railroad by his father, as 
agent for the owner, to do shop work. Instead of being put 
to that service he was employed generally as a train hand, 
and was put to any business that required his services by the 
agents of the road ; and on his return from the car shed, 
where he had been sent by one of the agents of the road, to the 
place of his general duties, the boy, of his own accord, and with- 
out the direction of any one of the employees, chose to ride 
back, by getting up and standing on the steps or platform of 
the car of the passenger train that was going out at that time, 
a thing that he was frequently in the habit of doing within 
the knowledge of the employers of the road, and getting off 
when the cars reached the place of general work or freight 
depot, and while the cars were in motion. On the morning 
in question, the train was going at a much greater speed than 
usual, or that the rules of the road allowed, and in attempt- 
ing to get off at his usual place, he was run over and killed. 
This is the evidence in support of the verdict, and we thinlfc 
it altogether sufficient for that purpose. 

The accident happened to the negro while he was in the 
actual performance of a service for the road, different from 



ATLANTA, MARCH TERM, 1861. 469 

Lewis vs. McAfee. 

that for which he was specially employed. The rule of law 
on this subject is, that if the thing (hired) is used for a dif- 
ferent purpose from that which was intended by the parties, or 
in a different manner, or for a longer period, the hirer is not 
only responsible for all damages, but if a loss occurs, although 
by inevitable casualty, he will generally be responsible there- 
for. The Mayor, etc., vs. Howard, 6 Ga., 219. This case 
is not an exception to the rule. But it is insisted that the 
negro, in the performance of the duty required of him, volun- 
tarily and of his own accord, without the authority of any 
of the agents of the road, exposed himself to the danger 
that resulted in his death, and that this exposure was not 
necessary to the performance of the duty required. That 
does not change the rule. Had the 'uegro been put to the 
service for which he was employed, and that only, this acci- 
dent could not have happened. And in addition to this, the 
negro was in the habit, while in the performance of similar 
service, of getting on the train, and riding fr6m the car shed to 
the freight depot, and getting off while the train was in 
motion, and there is no evidence that he had been prohibited 
or warned not thus to expose himself. "The neglect to exer- 
cise aathority to forbid a thing, is to permit it." Gorman vs. 
Campbell, 14 Ga., 142. 

Besides this, according to the evidence of the witness Lee, 
the train, at the time of the accident, was running at the 
speed of twenty-five or thirty miles per hour, when the 
schedale time was but ten miles per hour at the place of the 
accident This was such culpable mismanagement and neglect 
on the part of the road as would have made the road liable 
for the accident, although the negro might not have been 
in the employment of the road on the terms stated. 

Let the judgment be aiBrmed. 



470 SUPREME COURT OF GEORGIA. 

Rhodes vs. Lee. 

TwiGOS V. W. Rhodes, plaintiff in error, V8, George W. 

Lee, defendant in error. 

1. This Coart will not control the discretion of the Circuit Judge in 
refasing to appoint a Receiver, and in dissolving an injunction, where 
all the equity of the bill is successfully avoided by the answer. 

Bill in equity, in Fulton Superior Court. Decision by 
Judge O. A. Bull, at October Term, 1860. 

On the 30th day of August, 1860, Twiggs V. W. Rhodes 
exhibited his bill in equity against George W. Lee, alleging, 
that some time in the month of June, 1859, he and George 
W. Lee formed a partnership for the purpose of carrying on 
the business of sawing 'and selling lumber; that they pur- 
chased a steam engine, saws and fixtures for a saw mill ; that 
they also purchased a horse and wagon, and put up and set 
the mill to running on land belonging to the parties jointly; 
that the partnership property was worth about $4,000 00 ; 
that the mill began operations about the 1st -November, 
1859, sawing lumber and laths, and so continued up to the 
filing of the bill, and in that time made, as complainant 
charges, $1,000 00 net profits; that the proceeds of the mill, 
the books, accounts for lumber, assets and property of the 
firm, are all in the hands of Lee, who is insolvent, and is 
collecting the accounts and converting them to his own use, 
and is wasting the assets and property of the partnership ; 
that Lee refuses to settle with complainant, or give him 
access to the books of the firm, or allow him in any manner 
to control the assets and property ; that the firm owes about 
$1,000 00, for which complainant is liable, and will have to 
pay on account of Lee*s insolvency ; that complainant has 
paid into the concern $4,195 12, and exhibits with his bill 
an account of such payments. 

The prayer of the bill is for a discovery of the facts; for 
an accounting ; for an injunction restraining Lee from run- 
ning or disposing of the mill, or any of its fixtures, collecting 
the debts due the firm, or wasting any of the assets whatever; 
the appointment of a Receiver ; and for general relief. 



ATLANTA, MARCH TERM, 1861. 471 

Rhodes vs. Lee. 

On the 10th of September, 1860, the bill was sanctioned, 
and the injunction granted as prayed for, and an order nisi 
was also granted, calling upon the defendant to show cause 
whj a Receiver should not be appointed according to the 
prayer of the bill. 

At the time and place of hearing, the defendant appeared 
and filed his answer to the bill, and also produced numerous 
affidavits of other persons as a showing against the appoint- 
ment of a Receiver, and in favor of a dissolution of the 
iDJunction that was granted. 

The Reporter does not deem it necessary to set out in 
this statement the contents of the answer, and the affidavits 
in detail, as they are voluminous. Suffice it to say, that the 
answer plainly, fully, and distinctly denies every material 
fact and circumstance upon which the equity of the bill is 
based, and that the affidavits accompanying the answer sus- 
tain and support it very fully and strongly. The complain- 
ant filed two affidavits, which but feebly corroborated his bill 
in some of its unimportant allegations, and one of them was 
afterwards modified by the affiant until it rather contradicted 
than sustained the complainant. 

Upon the showing made, the presiding Judge not only 
refused to appoint a Receiver, as prayed for in the bill, but 
dissolved the injunction which he had previously granted, 
and that decision is the error complained of in the bill of 
exoeptiohs. 

Sims & Hoyt, for plaintifiT in error. 

Haygood & Johnston, for defendant in error. 

By the Court. — JENKINS, J., delivering the opinion. 

The Court below dissolved an injunction previously granted 
in this case, and refused to appoint a Receiver upon the 
coming in of the answer, and upon affidavits filed by the 
complainant in support of the bill, and by the defendant in 
support of his answer, and the complainant excepted. 



472 SUPREME COURT OF GEORGIA. 

Whidby V8, Lewia. 

A careful examination of the bill, answer and affidavits 
filed, has satisfied us : 

Ist. That all the equity of the bill is successfully avoided 
by the answer. 

2d. That the affidavits filed by the complainant gave veiy 
feeble support to his bill, whilst the affidavits filed by the 
defendant strongly corroborate his answer. 

We therefore think the judgment excepted to, correct. 

Let the judgment be affirmed. 



Susan Whidby, plaintiff in error, vs. John W. Lewes, 
Superintendent, etc., defendant in error. 

1. This Court will not reyerse judgment of the Saperior Coart, granting 
a new trial on the gronnd that the verdict ia contrary to the endence, 
unless fully satisfied that such judgment is an improper interference 
with the province of the jury. 

Trespass on the case, in Fulton Superior Court. Tried 
before Judge Bull, at the October Term, 1860. 

This action was instituted by Susan Whidby against Joha 
W. Lewu, Superintendent of the Western and Atlantic Rail- 
road, to recover damages for the killing of a negro man 
slave by the name of Cicero, belonging to the plaintiff, and 
which she alleged was run over and destroyed by the cars of 
the defendant, through the carelessness and negligence of his 
agents and employees. 

The testimony adduced on the trial established the state of 
facts following, to-wit : That a demand for settlement had 
been made by plaintiff before she brought suit, and defendant 
refused to settle; that on the 17th of July, 1857, a freight 
train belonging to said railroad had halted in the town of 
Marietta, Cobb county, in its way to Atlanta, and \vas stand- 
ing on the track across a public street and crossing much 
used and traveled ; that whilst the train was thus standing on 
the track, and across the street so as to obstruct it, the n^ro 



ATLANTA, MARCH TERM 1861. 473 

Whidby vs. Lewis. 

boy that was killed^ was upon a wagon loaded with sand^ 
and pulled by two mules, waiting for the train to move off 
so that he could pass; that after thus waiting for some time 
the usual signal for starting was given, and the train moved 
off in the direction of Atlanta ; that after the train had 
passed the crossing and cleared the street the negro started 
bis team across the railroad, when, in order to avoid a col- 
lision with an up train just coming into Marietta from 
Atlanta, the freight train, without any signal, was suddenly 
reversed and commenced backing, and as the negro, who 
was urging his males forward, got his wagon on the track, 
the backing train struck his wagon and he jumped from the 
wagon, fell on the track, was run over by the wheels of 
the car, and almost instantly killed; that the mules had 
cleared the track, but the wagon was partly crushed ; that 
the negro was named Cicero, was about twenty-two years 
old, stout built, of good character, belonged to plaintiff, and 
was worth from $1100 00 to 81300 00. 

The fireman of the train stated, in his testimony, that the 
man at the switch called to the negro and told him not to 
come on the railroad, that he would be killed by the cars. 
The fireman also stated that he was on the tender and was 
looking out, and seeing the boy or his mules on the road, he 
halloed to the engineer that he would run over the boy. 
The engineer reversed the engine, throwing her forward so 
as to prevent a collision with the negro and his team, and 
put on all the steam, but could not stop in time. Owing to 
a curve in the road, and the situation of the train, the engi- 
neer could not have seen the boy at the time he started across 
the railroad ; the train was running in proper time. 

Upon this testimony the jury returned a verdict in favor 
of the plaintiff for $1250 00 damages, and counsel for 
ddendant moved for a new trial, on the ground : 

lat. That the verdict was contrary to law, contrary to the 
evidence, contrary to the weight of the evidence, and unsup- 
ported by the evidence. 

The presiding Judge granted the new trial, and the writ 
of enror ia prosecuted to reverse that decision. 



474 SUPREME CX)UET OF GEORGIA. 

McLendon vs Shackleford. 

A. W. Stone, for plaintiff in error. 

R. W. Sims and V. A. Gaskill, cordra. 

By the Court. — Jenkins, J., delivering the opinion. 

In the Court below, the Judge ordered a new trial on the 
ground that the verdict is not sustained by the evidence, and 
to this ruling the plaintiff excepts. 

After a careful review of the evidence, we are not satisfied 
with the proof that the death of plaintiff's slave was occa- 
sioned by the culpable negligence of the defendant, his 
agents or employees. 

If it were so occasioned, there must be some evidence on 
that point not adduced on the trial, and as the effect of the 
judgment under review is not to conclude the rights of the 
parties, but to open the case for a re-hearing, we will not 
interfere with it. 

This Court will not reverse a judgment of the Superior 
Court, granting a new trial on the ground that the verdict is 
contrary to the evidence, unless fully satisfied that such judg- 
ment is an improper interference with the province of the 
jury, that Court having facilities to form a right appre- 
ciation of the weight of evidence which this Court has not. 

Let the judgment be affirmed. 



Freeman McLendon, plaintiff in error, vs. John W. 

Shackleford, defendant in error. 

1. The promise of M., on the presentation of an obligation to hini) 
which was the subject of the suit, and purporting to be signed bj him, 
that he would settle it but did not then have the money, but was wil- 
ling to give some notes thfit he had, is sufficient evidence to support 
a verdict against him on said obligation. 

Assumpsit, in Meriwether Superior Court Tried before 
Judge Bull, at the August Term, 1860. 



ATLANTA, MARCH TERM, 1861. 475 

McLendon vs, Shackleford. 



This action was brought by John W. Shackleford against 
Freeman McLendon^ to recover the amount due on the fol- 
lowing receipt to-wit : 

"Eeceived, Griffin, August Slst, 1857, from John W. 
Shackleford, three new Concord no-top buggies, which we 
promise to sell or return, on or by the 25th of December next. 
Amount sold for, $376 00. 

"FREEMAN McLENDON, 
" By, per Samuel W. Moyer." 

McLendon, amongst other things, pleaded non est factum 
to the receipt sued on. 

On the trial, the plaintiff proved that Moyer was the 
trimmer in the carriage shop of the defendant, and acted as 
his agent in the sale and exchange of buggies and carriages ; 
that Moyer had verbal authority ftora McLendon to sign his 
name to the receipt; that one of the buggies mentioned in 
the receipt ^as sold, and the price charged by defendant 
on his books ; that the other two buggies were exchanged by 
Moyer for old buggies, and notes for the difference in the 
exchange, and that defendant took possession of the notes, 
on one of which he received the money, and also took pos- 
Bession of the old buggies, one of which he exchanged for a 
mule ; that the receipt was presented to defendant for pay- 
ment, in the Spring of 1858, and that he said he was willing 
to pay it, but did not then have the money, and proposed to 
turn over notes, which the party presenting the receipt refused 
to receive, unless defendant would endorse them. 

On the part of the defendant it was shown, that in Sep- 
tember, 1867, Moyer said that he desired to go to Griffin to 
get some buggies, as he was out of commission buggies ; that 
this selling of buggies on commission was a business of his 
own, outside of the shop business that he was doing for 
McLendon ; that two or three days thoreafter he showed a 
^ritneas two or three buggies, which he said were those he 
obtained at Griffin; that there was a public notice, of which 
the following is a copy, to-wit : 



476 SUPREME COURT OF GEORGIA 

McLendoQ vs. Shackleford. 

" NOTICE. 

Greenville, Georgia, Oct. 29th, 1857, 

Baggies for sale, 

SAMUEL W. MOYER." 

Upon this evidence the jury found for the plaintiff, $375 00, 
with interest and cost, and counsel for defendant moved for 
a new trial, on the ground : " That the verdict was contrary 
to law and evidence, and strongly and decidedly against the 
weight of evidence." 

The Court refused the new trial, which is the error alleged. 

B. H. Hill, by Sims, for plaintiff in error. 

George A. Hall, contra. 

By the Court, — Lyon, J., delivering the opinion. 

We can not say that the verdict is so strongly and decidedly 
against the weight of the evidence as to require us to send it 
back. 

The witness Shackleford testifies that he presented the 
paper, which was the subject matter of the suit, to the plain- 
tiff in error, defendant in the suit, some time in the year 
1858, when it was then due and payable according to its 
terms, when McLendon said ^^ he was willing to settle, bat 
did not then have the money, but was willing to give some 
notes that he had." This was very positive evidence, and 
directly to the point, and if the jury thought proper to be- 
lieve it, and to find upon it, we do not see why we should 
disturb it. At all events, we can not say the verdict is 
against the evidence, or decidedly and strongly against its 
weight, especially as there was no direct evidenoe to the 
contrary. 

It is true that the witness says that McLendon told him 
in the same conversation that Moyer had no authority to 
give that receipt ; but if McLendon, notwithstanding, had 
received the buggies, and thus ratified the act, he was as much 
bound to pay as if he had authorized the signing of the 



ATLANTA, MARCH TERM, 1861. 477 

Chaffee St. Amaod k Groft vs, Rentfroe k Brother. 

receipt, and it mast be presamed that he either received the 
buggies, or the proceeds of their sale^ or be would not have 
agreed to settle for them. 
Let the jadgment be affirmed. 



Chaffee St. Amand & Croft, plaintiffs in error, V8. Rent- 
froe & Brother, defendants in error. 

The repeated admissions of B. R., who is sought to be charged as a part- 
ner of his brother, S. R., that he was interested with his brother in the 
grocery, before and afler the giving of the note in suit ; that he com- 
plained of S. R.*s extravagance; proof that goods came to the place 
of bnainess marked Rentfroe k Bro., within the knowledge of B. R., 
who claimed an interest in the goods so marked, is sufEcient evidence 
of partnership to require a recovery against him, notwithstanding his 
plea of non at factum, not a partner, etc. 

Assumpsit^ in Fayette Superior Court. Tried before Judge 
Hammond, at the September Term, 1860. 

This action was instituted by Chaffee St. Amand & Crofl, 
against the firm of Rentfroe & Brother, composed of Bur- 
kett Rentfroe and Stephen Rentfroe, to recover the sum due 
on a promissory note, signed Rentfroe & Brother, payable to 
the order of the plaiatiffs, dated Charleston, S. C, 8tb 
February, 1857, due at four months, for $422 11. 

Burkett Rentfroe pleaded to the action, that he was not 
the partner of the said Stephen Rentfroe at the date of the 
note, or before, or since that time, under the style of Rent- 
free & Brother, or any other style, and that the note was 
given without his knowledge, consei^t, or authority. 

On the trial of the case, the note was read in evidence, 
and it further appeared from the proofs made : That in the 
year 1856, Burkett Rentfroe said that he was a partner of 
Stephen Rentfroe in the grocery business in Fayetteville, and 
had been, all the way through; that the grocery of one Bos- 
worthy and the Rentfroe grocery, were the only establish- 
meato of that kind in Fayetteville, in the summer of 1866, 



478 SUPREME COURT OF GEORGIA. 

Ghafifee St. Amand & Croft va. Rentfroe & Brother. 

and Bosworth and Stephen Rentfroe agreed to^ and did raise 
the price of liquors to ten cents a drink ; that some time 
thereafter, Burkett Rentfroe went to Bosworth and asked 
him if he did not fear that the raising of the price of liqaors 
would injure both houses, and cause them to sell less and 
make less money than if the price were to remain as before, 
and gave as a reason for asking, that he was interested with 
Stephen Rentfroe, or had an interest in the grocery; that 
goods or groceries came to the Rentfroe house marked 
" Rentfroe & Brother,'' and that Burkett Rentfroe was fre- 
quently about the grocery during the time that groceries thus 
marked were being received, and one of the witnesses thinb 
Burkett Rentfroe hauled some of the groceries thus marked 
on his wagon; that in 1857, the sheriff levied on the stock 
of groceries in the Rentfroe house, and Burkett Rentfroe 
asked him if he did not think it was wrong to lock up his 
(Burkett's) interests in that way ; that some of the groceries 
levied on were fresh, and some unopened, and some in a small 
room or closet, marked " Rentfroe & Brother," which Bur- 
kett Rentfroe claimed to have an interest in, and said he 
intended to interpose a claim to them, but afterward declined 
to do so ; that Burkett Rentfroe said, on another occasion, 
that he had gone into the business with Stephen Rentfroe to 
give him a start, and that from the way Stephen was going 
on, in extravagance in dress and in dressing his intended 
wife, it looked like it would ruin him (Burkett) as it was all 
coming out of him (Burkett) ; that there were debts against 
them, which he (Burkett) would have to pay, and that Ste- 
phen had told him that certain debts had been paid which 
he (Burkett) afterward ascertained were not paid ; that Bur- 
kett Rentfore, on another occasion, in a conversation about 
the grocery, said that he did not get any, or much profits. 

Upon this testimony the jury found for the defendant, 
Burkett Rentfroe, and against the defendant, Stephen Rent- 
free. 

Counsel for plaintiffs then moved for a new trial, on the 
ground : 



ATLANTA, MARCH TERM, 1861. 479 

Chaffee St. Amand k Croft vs. Rentfroe & Brother. 

That the verdict was contrary to law and evidence, and 
was without sufficient evidence to support it. 

The Court refused the new trial, and that refusal is the 
error alleged. 

TiBWELL & WooTEN, for plaintiff in error. 

A. W. Stone, contra. 

By the Court, — Lyon, J., delivering the opinion. 

We think that the motion for a new trial ought to have 
been allowed, as the verdict was without and against the evi- 
dence. 

The defendant, Burkett Rentfroe, who denied the partner- 
ship, and in whose favor the issue was found, admitted 
repeatedly that he was interested with his brother in the gro- 
cery both before and after the execution of the note ; com- 
plained of his brother's extravagance; that he would ruin 
him ; that it would come out of him ; goods came to the 
place where the business was carried on marked Rentfroe & 
Bro., within the knowledge of Burkett, and he claimed him- 
self as having an interest in said goods so marked ; was fre- 
quently about the grocery, and claimed an interest therein. 
All this was proved by a number of witnesses, and the plea 
was unsupported by any evidence of any character whatever. 
Let the judgment be reversed. 



480 SUPREME COURT OF GEORGIA. 

■■■IH 11 -■ II ■■ I ^^"^ 

Wilcoxon et al., vs, Harrison. 

John B. Wilcoxon et al., plaintifife in error, vs. Hillsbeb- 
KY R. Harrison, defendant in error. 

1. S granted certain lands to trasteeSi for the use of the Baptist denomi- 
nation of Georgia, to be used and occupied for the pnblic worship of 
Almighty God, and attached to the deed a condition, that wheneyer 
certain specified articles of religious faith, then held by the Cbnrch, 
should be changed, or the property should be used for any other par- 
pose than that before expressed, the grantor, his heirs or legal repre- 
sentatives, might re-enter and possess and enjoy the land as if the deed 
had never been made : Heldj that the condition was lawful, and the 
grantor had a perfect right to attach it to his grant of the lands. 

2. No public charity can successfully assert an equity, against a plain 
legal right of a private individual. 

8. An interest in expectancy, or possibility, maybe the subject of assign- 
ment, but the intention to make such assignment must appear clearly 
and indisputably. 

4. A deed contained a condition of defeasance upon a certain conUD- 
gency, and also provided, that upon the happening of the contingencj, 
the grantee might remove any improvements placed upon the premises 
by him : HMj that in the absence of an averment that the grantee 
had attempted to remove improvements and had been obstructed in it, 
there was no sufficient reason for the intervention of equity. 

Bill in equity and demurrer, in Coweta Superior Conrt, 
Decided by the Hon. 0. A. Bull, at September Term, 1860. 

The questions presented by the record in this case, arise 
out of the following state of facts, to-wit : 

On the 25th day of April, 1831, William Saulsbury exe- 
cuted a deed, conveying to Samuel D. Echols and four other 
persons named, trustees of the Newnan Church, and their 
successors in office^ ten acres of land, in or near the town of 
Newnan, Coweta county, Georgia, for the use of the Baptist 
denomination of Georgia, to be used and occupied for the 
public worship of Almighty God. The deed set out seven 
articles of religious faith, as being held by said denomina- 
tion, and then stipulated that the deed was exe